Nykorchuk, Kari v. Northampton, City of - City Clerk (SPR 20260954)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 30, 2026 SPR26/0954 Pamela L. Powers City Clerk City of Northampton 210 Main Street, Room 4 Northampton, MA 01060 Dear Ms. Powers: I have received the petition of Kari Nykorchuk, Esq., appealing the response of the City of Northampton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 27, 2026 Attorney Nykorchuck sought, “a copy of the application and signed permit for Sovereign Builders that was signed by the Department of Public Works for the project on Glendale Road[.] I’m wondering why he was able to construct an entire driveway without obtaining a stormwater permit?” The City responded on March 13, 2026 and March 16, 2026. Unsatisfied by the responses, Attorney Nykorchuck petitioned this office and this appeal, SPR26/0954, 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. See 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

Pamela L. Powers SPR26/0954 Page 2 March 30, 2026 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 City’s March 13th and March 16th Responses In its March 13, 2026 response, the City stated, “[y]ou are requesting more than 1,000 pages of documents and it will take a considerable amount of effort for their compilation. Please either confirm or refine your request and I will calculate a fee.” In a March 13, 2026 email to the City, Attorney Nykorchuck stated, “[t]his response was also late. What are you going to do to address this problem? Even the response I received today was not complete and not done according to statue. The response is wholly incomplete as well as late…” In its March 16, 2026 response, the City stated, “[an identified individual] has provided you with a response to your request for records and is asking if you would like 1,000 pages, which will require her to calculate a fee for the records based on the time to reproduce these documents, or if you would like to narrow the scope of the request to minimize the cost to produce the records. Note that [an identified individual] responded on the 10th business day. I also note that you had asked a question…This does not appear to be a request for documents; however if you believe that a record exists which [an identified individual] can provide, please clarify your request…” In a March 17, 2026 email to the City, Attorney Nykorchuck stated, “I would like to pay for the 1,000 pages. What is the cost?” Current Appeal In her March 17, 2026 petition to this office, Attorney Nykorchuck stated the following: …according to the website of the Massachusetts Secretary of State the DPW director is to provide a fee estimate. There is no mention of a fee except if I renew my request, I am told then I will get a fee. That is a clear violation of the law. . . The DPW director refused to answer my questions thereafter and failed to provide a breakdown for the charge, the time necessary to fulfill the request or any communication regarding whether she received the check or when I would receive the documents… Timeframe for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the

Pamela L. Powers SPR26/0954 Page 3 March 30, 2026 timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Nykorchuck made her request on February 27, 2026, and the City has not provided responsive records, I find the City has not met its burden in responding to the requests in accordance with G. L. c. 66, § 10(b). Consequently, the City must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide the records on a rolling basis. No Duty to Answer Questions 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). Conclusion Accordingly, the City is ordered to provide Attorney Nykorchuck with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Attorney Nykorchuck may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kari Nykorchuk, Esq.