William Tinker v. Hardwick, Town Of (SPR 20252522)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2025 SPR25/2522 Ryan Witkos Town Clerk Town of Hardwick 307 Main Street Gilbertville, MA 01031 Dear Mr. Witkos: I have received the petition of William Tinker appealing the response of the Town of Hardwick (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 28, 2025, Mr. Tinker requested: [1] A complete copy of all bylaws currently adopted and in effect[;] [2] A certification that the version provided is accurate and reflects the most recent approvals by the Attorney General[;] [3] The date of the last submission and/or approval of any bylaw amendments, if available. Prior Appeal and Petition This request was the subject of a prior appeal and petition for relief and extension of time. See SPR25/1730 Determination of the Supervisor of Records (June 30, 2025) and SPR25/1808 Determination of the Supervisor of Records (July 1, 2025). In my June 30th determination, I found that the Town must revise its fee estimate or provide further explanation of how the assessed fee is consistent with the Public Records Law. In my July 1st determination, I found that the Town had established good cause for a time extension of 30 business days. I did not grant the Town’s request for relief from the obligation to produce records. The Town responded on July 30 and August 13, 2025. Unsatisfied with the Town’s responses, Mr. Tinker petitioned this office and this appeal, SPR25/2522, was opened as a result. 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

Ryan Witkos SPR25/2522 Page 2 September 9, 2025 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. 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 Town’s July 30th and August 13th Responses In its July 30, 2025 response, the Town provided Mr. Tinker with approximately 450 pages of responsive records. In its August 13, 2025 response, the Town informed Mr. Tinker that it was not required to maintain an accurate record of the Town’s bylaws and advised him that it was under no duty to create records. Current Appeal In his August 25, 2025 petition to this office, Mr. Tinker characterized the Town’s response as out of compliance with the Public Records Law. In an August 26, 2025 email communication to this office, the Town confirmed that it had provided Mr. Tinker with all records responsive to his 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 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).

Ryan Witkos SPR25/2522 Page 3 September 9, 2025 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 Mr. Tinker 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: William Tinker