David Clough v. Canton, Town of - Town Clerk (SPR 20252410)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 26, 2025 SPR25/2410 Tracy Kenney Town Clerk Town of Canton 801 Washington St, 1st Floor Canton, MA 02021 Dear Ms. Kenney: I have received the petition of David Clough appealing the response of the Town of Canton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 25. 2025, Mr. Clough requested, “all feedback and expressions of concern provided to the Town Moderator related to the Finance Committee appointment of [an identified individual].” The Town responded on July 10, 2025. Unsatisfied with the response, Mr. Clough petitioned this office and this appeal, SPR25/2410, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Tracy Kenney SPR25/2410 Page 2 August 26, 2025 If there are any fees associated with a response a written, good faith estimate must be provided. See G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s July 10th Response On July 10, 2025, the Town stated, “…attached please find copies of responsive emails. There is no other documentation responsive to this request.” Current Appeal In his August 15, 2025 appeal to this office, Mr. Clough stated, “I am looking to see what feedback and expressions of concern were provided to the town moderator which can be derived in the [provided] email screenshot… This information should be included as a result of my original public records request…” In an August 18, 2025 email communication from the Town to this office and Mr. Clough, the Town confirmed that it had provided all records in its possession responsive to Mr. Clough’s request. No Duty to Create Records Please be advised, under the Public Records Law, a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the Town has confirmed that it has provided all responsive records and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Mr. Clough is not satisfied with the resolution of this administrative appeal, please be advised that this office share jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Tracy Kenney SPR25/2410 Page 3 August 26, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Clough