Eric Richards v. Auburn, Town of - Town Clerk (SPR 20253377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2025 SPR25/3377 Ginger L. Buteau Interim Town Clerk Town of Auburn 104 Central Street Auburn, MA 01501 Dear Ms. Buteau: I have received the petition of Eric Richards appealing the response of the Town of Auburn (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2025, Mr. Richards requested, “Revised Phase I / Phase II Engineering for Eddy Pond Dam (MA02730), EAP updates, ODS correspondence, and related records (June 1, 2025–present)[.]” It is my understanding that the Town assigned this request reference number #2025-783. Previous Appeal This request was the subject of a previous appeal. See SPR25/3174 Determination of the Supervisor of Records (November 12, 2025). In my November 12th determination, I noted that the Town responded to the request on October 14, 2025, however, I was unable to opine on the reasonableness of the Town’s fee estimate. Subsequently, Mr. Richards confirmed that the Town did not assess a fee for this request. Unsatisfied with the Town’s October 14, 2025 response, Mr. Richards petitioned this office and this appeal, SPR25/3377, 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). 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

Ginger L. Buteau SPR25/3377 Page 2 December 2, 2025 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 October 14th Response In its October 14, 2025 response, the Town provided responsive records and stated, “[p]lease see attached for correspondence/ documents for Eddy Pond Dam from June 1, 2025 to present.” Current Appeal In a series of emails to this office on November 15, 2025 and November 17, 2025, Mr. Richards stated: I have 0 idea if the records provided were complete, if any were withheld, etc... Further they haven’t complied with another component of a response for this request including but not limited to a list of records held, list of records withheld, appeal rights, population notice, electronic records and other records searched, etc... I got an email with about 10 email files, and a couple of pdfs… Literally they didn’t comply with a single element of public records law or requirements in this request. In a subsequent email to Mr. Richards and this Office on November 21, 2025, an attorney for the Town noted that Mr. Richards’ October 6, 2025 request stemmed from a prior April 30, 2025 request, and explained the Town’s timeline in which it provided Mr. Richards with responsive records. In addition, the attorney stated: The Town provided the documents requested… digitally and free of charge, within the 10 day deadline… The Town of Auburn provided all the follow up records he requested in October, which had been produced since his April request… No fee estimate was transmitted to Mr. Richards… [A]ll records relative to this request, on this topic, have been provided by the Town, at no cost to Mr. Richards. In a supplemental email to this office on November 22, 2025, Mr. Richards argued:

Ginger L. Buteau SPR25/3377 Page 3 December 2, 2025 Town Counsel’s characterization of PRR #2025-783 as “merely a follow-up” to an April 2025 request is incorrect. Furthermore, the Town’s… response… was not issued by a Records Access Officer (RAO) as required, omitted virtually all of the nine elements that G. L. c. 66, § 10(b) and 950 CMR 32.06 mandate in a timely response, and thus does not qualify as a lawful response under the statute. In a telephone conversation between the Town and this office on November 24, 2025, the Town confirmed that it has provided all records responsive to Mr. Richards’ October 6th request and is not withholding any additional records. 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). Conclusion Given that the Town has confirmed that it possesses no additional records responsive to the request, and this office has no authority to compel the Town to create records, I will consider this administrative appeal closed. If Mr. Richards 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: Eric Richards Robert J. Hennigan, Jr., Esq.