Nicole Demakis v. Mattapoisett, Town of - Town Clerk (SPR 20253456)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2025 SPR25/3456 Catherine L. Heuberger Town Clerk Town of Mattapoisett 16 Main Street, P. O. Box 89 Mattapoisett, MA 02739 Dear Ms. Heuberger: I have received the petition of Nicole Demakis, Esq., of Trovillion, Inveiss, Demakis & Hansen, appealing the response of the Town of Mattapoisett (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, Attorney Demakis requested the following: [1] [A] copy of the sign-in sheet for all those who attended the special town meeting Saturday Oct 4, 2025 to include registered voters and guests. [2] [T]he line-item final expense to the town to hold that meeting. [3] [C]opies of any and all communication between [two identified individuals] since your last PRR response to me on August 8, 2025, to include any emails between [two identified individuals] from either … government or private email account, any text messages between [two identified individuals] from a work or private cell phone to the extent that any town business was discussed or any and all Signal text messages between [two identified individuals] concerning [an identified individual’s] petition to rescind the vote which was the subject of our special town meeting on 10/4/25. [4] [A]ny and all written or text communication concerning anything else related to attendance at special town meeting especially as it pertains to the clearly pre- planned exchange between [two identified individuals] during that meeting. 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

Catherine L. Heuberger SPR25/3456 Page 2 December 5, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/3075 Determination of the Supervisor of Records (October 29, 2025). In my October 29th determination, I ordered the Town to clarify whether it was withholding text messages and/or emails from “private email accounts and/or [a] personal cell phone,” and whether the records were sent or received in furtherance of Town business. The Town responded on November 12, 2025 and November 14, 2025. Unsatisfied with the Town’s responses, Attorney Demakis petitioned this office and this appeal, SPR25/3456, 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. 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 November 12th and November 14th Responses In its November 12, 2025 response, the Town provided responsive text message records and stated “[t]hese text messages are the only communications exchanged between the two parties which are relevant to this request that were not previously provided. To be clear, no further relevant records exist.” On November 13, 2025, Attorney Demakis argued that the Town was still withholding responsive records and replied, “[y]our determination that something is not relevant is not a lawful basis to withhold production of records under the Massachusetts Public Records Law” In its November 14, 2025 response, a Town official stated, “I had no other communication with [an identified individual] regarding the special town meeting or anything else for that matter. I have produced all communication. I have satisfied the request. I cannot produce a privilege log because I have not held back any communication.”

Catherine L. Heuberger SPR25/3456 Page 3 December 5, 2025 Current Appeal In her appeal petition, Attorney Demakis argued that the provided text messages are nonresponsive and stated, “[i]t is unfathomable that this one text exchange… is the only communication.” In a telephone conversation between the Town and this office on December 3, 2025, the Town confirmed that it does not possess any additional responsive 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 Attorney Demakis 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: Nicole Demakis, Esq.