Christopher Kelleher v. Brookfield, Town of - Town Clerk (SPR 20252534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2025 SPR25/2534 Michael P. Seery Town Clerk Town of Brookfield 6 Central Street Brookfield, MA 01506 Dear Mr. Seery: I have received the petition of Christopher Kelleher appealing the response of the Town of Brookfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 25, 2025, Mr. Kelleher requested: A copy of any and all emails or other communications sent by [an identified individual] in her capacity as a member or Chair of the Brookfield Board of Health, to the Massachusetts Cannabis Control Commission (CCC) between October 1, and October 10, 2023, regarding 6 Molasses Hill Road, Sunfusions, cannabis zoning, licensing or related permitting issues. Prior Appeals This request was the subject of prior appeals. See SPR25/1504; SPR25/1505; SPR25/1506 Determination of the Supervisor of Records (May 29, 2025) and SPR25/1541 Determination of the Supervisor of Records (June 2, 2025). In my June 2nd determination I ordered the Town to clarify whether it possessed records responsive to the request. The Town responded on July 7, 2025. Unsatisfied with the response, Mr. Kelleher petitioned this office and this appeal, SPR25/2534, was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response on September 8, 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 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

Michael Seery SPR25/2534 Page 2 September 9, 2025 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 7th Response In its initial July 7, 2025 response, the Town informed Mr. Kelleher that it did not possess responsive records. The Town further stated that the requested record was a personal email sent from a private account. Current Appeal In his August 26, 2025 petition to this office, Mr. Kelleher objected to the Town’s characterization of the requested record as a personal email. Mr. Kelleher contended that the requested record was sent in furtherance of public business. In its September 8, 2025 response, the Town confirmed that the requested record was a personal email sent from a private account. 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 Given that the Town possesses no records responsive to Mr. Kelleher’s request and this office has no authority to compel the Town to create records, I will now consider this administrative appeal closed. If Mr. Kelleher is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior

Michael Seery SPR25/2534 Page 3 September 9, 2025 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: Christopher Kelleher