Steve Stearns v. Millbury, Town of - Town Clerk (SPR 20252796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7 2025 SPR25/2796 Jayne Marie Davolio Town Clerk 127 Elm Street Millbury, MA 01527 United States Dear Ms. Davolio: I have received the petition of Steve Stearns appealing the response of the Town of Millbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 29, 2025, Ms. Stearns requested, “all materials . . . scheduled for deliberation at the upcoming Planning Board meeting on September 8, 2025.” The Town responded on September 2, 2025 and September 8, 2025. Unsatisfied with the Town’s responses, Mr. Stearns petitioned this office, and this appeal, SPR25/2796 was opened as a result. While this appeal was pending, the Town provided additional information to this office in an email dated September 24, 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. 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

Jayne Marie Davolio SPR25/2796 Page 2 October 7, 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 Town’s Responses In its September 2, 2025 response, the Town provided numerous responsive records and stated, “[p]lease find attached the documents we currently have for next Monday’s planning board meeting. You can also find the subdivision application on the planning board website. The agenda is not finalized but will be submitted to the town clerk ahead of Monday’s meeting, per open meeting law requirements.” Following the above correspondence, in an email on the same date, the Town provided the responsive records to Mr. Stearns again by sending “a link for the files” after “[e]mail delivery bounced to” his email address. Subsequently, in an email to the Town also dated September 2, 2025, Mr. Stearns stated, “[f]or clarification, the original request is a continuing request.” He additionally contended, “[t]herefore, any records or materials generated, received, or distributed after the transmission of files on September 2, 2025, at 6:42 PM, and up until the commencement of the September 8, 2025 meeting, must likewise be produced promptly and without the need for any further request.” In its September 8, 2025 response, a representative of the Town provided additional responsive records through a shared link and stated, “[p]lease find attached the agenda and the materials we have for the various Board discussion items for tonight’s meeting.” The Town representative additionally advised, “[l]ast week we sent [Mr. Stearns] the documents for the public hearing - Old Common Road – Definite Subdivision. I have sent the link again for reference, all materials for the application are included.” Current appeal In his September 24, 2025 appeal petition, Mr. Stearns states that his request “was only partially fulfilled, with records produced for three of the nine agenda items.” Subsequent to the opening of this appeal, in an email to this office dated September 24, 2025, counsel for the Town advised, “[i]t is my understanding that copies of all requested records in existence at the time of the request have been provided to the requester.” Additionally, in a telephone a conversation between a Public Records Division staff member and a Town representative on October 6, 2025, the Town further confirmed that it has no additional records responsive to the request.

Jayne Marie Davolio SPR25/2796 Page 3 October 7, 2025 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 Accordingly, where the Town does not possess any additional records responsive to Mr. Stearns’ request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Stearns 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). Sincerely, Manza Arthur Supervisor of Records cc: Steve Stearns