Andrew Kerr v. Attleboro, City of - City Clerk (SPR 20252447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2025 SPR25/2447 Kathleen Jackson City Clerk City of Attleboro 77 Park Street Attleboro, MA 02703 Dear Ms. Jackson: I have received the petition of Andrew Kerr appealing the response of the City of Attleboro (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 16, 2025, Mr. Kerr requested “any and all meeting notes or records, along with any and all applicable meta data for those notes or records, for any phone conversation that took place between [two named City Council members] . . . about [‘][t]he [an identified individual] Situation[’]. . . .” The City provided a response on August 18, 2025. Unsatisfied with the City’s response, Mr. Kerr petitioned this office and this appeal, SPR25/2447, was opened as a result. Status of the Requestor; Reason for the Request Mr. Kerr is advised, the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Kerr’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 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

Kathleen Jackson SPR25/2447 Page 2 September 3, 2025 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. Att’y 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. If there are any fees associated with a response a written, good faith estimate must be provided. 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. Current Appeal In his August 19, 2025 appeal petition, Mr. Kerr indicates that “on July 22, 2025, [he] submitted a public records request [to the City] for [a named City Council member’s] emails and text messages.” In response to the July 22nd request, he notes that the City provided responsive records that included “a text message . . . between” the two City Council members identified in his above August 16, 2025 request. Mr. Kerr additionally explains that this responsive text message included the phrase, “[t]he [an identified individual] Situation[,]” as specified in his above August 16, 2025 request. Following the City’s response to his July 22nd request, Mr. Kerr states that he submitted “a follow-up request [to the City] for any records . . . about [‘][t]he [an identified individual] Situation[’].” Upon review of the file, it is my understanding that the “follow-up request” as described in Mr. Kerr’s appeal petition concerns his above August 16, 2025 request. Consequently, Mr. Kerr appeals the City’s August 18, 2025 response to his August 16, 2025 request, and claims that “[t]his response, following their explicit intent to avoid written documentation, suggests a deliberate effort to evade transparency obligations.” The City’s August 18th Response In its August 18, 2025 response, a City Council representative advised, “[t]here is nothing further.” No Duty to Create Records Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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).

Kathleen Jackson SPR25/2447 Page 3 September 3, 2025 In a telephone conversation between this office and a representative of the City on September 2, 2025, the City confirmed that it provided all records responsive to Mr. Kerr’s August 16th request. Conclusion Where the City confirmed that it does not possess additional records responsive to Mr. Kerr’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Kerr is not satisfied with the resolution of this administrative appeal, please be advised that this office shares 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). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Kerr