David Webb v. Worcester City Clerk (SPR 20252487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2025 SPR25/2487 Janice E. Thompson, Esq. Assistant City Solicitor Law Department City of Worcester 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of David Webb appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 14, 2025, Mr. Webb requested, “numbers for the unlabeled unsorted documents provided in a WB Mason box handed to David Webb by the Worcester Police Department May 27th 2025 on behalf of the public records department…” The City responded on August 15, 2025. Unsatisfied with the City’s response, Mr. Webb petitioned this office and this appeal, SPR25/2487, 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

Janice E. Thompson, Esq. SPR25/2487 Page 2 September 4, 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. The City’s August 15th Response In its August 15, 2025 response, the City stated, “[t]here is not an existing document that includes this information, and a records custodian is not required to create a record in response to a public records request. However, the printed documents provided to you are courtesy copies of records that the City previously provided to you electronically via the public records portal over the course of the prior twelve months (excluding audio and video files). You may locate all of the reference numbers as well as the responsive documents through your Public Records Center account(s).” Current Appeal In his appeal petition, Mr. Webb stated: I cannot clarify this discrepancy - For the past few months, I have been submitting public record requests directly to the email of the listed records access officer, and CCing the assistant city solicitor that supervises the public records process, as well as often the solicitor herself. Unfortunately, it is inconsistent which requests are eventually submitted into their portal and provide responses to. I believe the reason this one was eventually entered into their system on 8/15/2025 and subsequently provided with a response later that day is due to my round of appeals to your office on the 14th regarding other requests they had not complied with the public records law on. In a telephone call between a staff attorney of the Public Records Division and the City on September 2, 2025, the City confirmed that it has found no responsive records to Mr. Webb’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). Further, 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).

Janice E. Thompson, Esq. SPR25/2487 Page 3 September 4, 2025 Conclusion Given that the City has confirmed that it possesses no records responsive to the request, and this office has no authority to compel the City to create records, I will now consider this administrative appeal closed. If Mr. Webb 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: David Webb Michael Vigneux