Elizabeth Garthe v. Marblehead, Town of (SPR 20252480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2025 SPR25/2480 Kyle Wiley Records Access Officer Select Board Office Town of Marblehead 188 Washington Street Marblehead, MA 01945 Dear Ms. Wiley: I have received the petition of Elizabeth Garthe appealing the response of the Town of Marblehead (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 28, 2025, Ms. Garthe requested certified copies of eight specified “Marblehead Orders and Determinations[.]” The Town responded on August 11, 2025. Unsatisfied with the Town’s response, Ms. Garthe petitioned this office and this appeal, SPR25/2480, 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

Kyle Wiley SPR25/2480 Page 2 August 28, 2025 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. Status of the Requestor; Reason for the Request Please note that 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, Ms. Garthe’s purpose in making the request has no bearing on the public status of any existing responsive records. The Town’s August 11th Response In its August 11, 2025 response, the Town provided Ms. Garthe with seven documents responsive to her request. The Town stated that it did not possess one of the requested records. The Town further stated that it would provide Ms. Garthe with certified copies of the documents for a fee, and advised her to contact the Office of the Town Clerk. Current Appeal In her August 20, 2025 petition to this office, Ms. Garthe contended that she had a special right of access to the requested records and that the Town was required to produce certified copies of the requested records. In an August 25, 2025 telephone conversation with this office, the Town confirmed that it had provided Ms. Garthe with all responsive records in its possession. 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 only 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 Given that all responsive records have been provided, and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Ms. Garthe 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, §§

Kyle Wiley SPR25/2480 Page 3 August 28, 2025 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Garthe