Ballots are composed, edited with word processing software and stored
electronically. Ballots can be made available by email that get sent
electronically to the commercial Printer. Or Ballots that get sent to the
Secretary of the Commonwealth of Massachusetts Elections Division unit that
produces the Ballots. Likewise composed, edited with word processing
software and stored electronically are the Absentee Ballots. And the
Specimen Ballot Postings put up on the walls for voters to read in the
entrances at the Polls.


---------- Shawn Williams ----------
I have received your letter appealing the response of the City of Boston
(City) to
your August 21, 2012 request for records. See G. L. c. 66, s 10(b)
(Supervisor of
Records has authority to resolve public records appeals); see also 950
C.M.R. 32.08(2)
(appeal process).
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleX/Chapter66
http://www.lawlib.state.ma.us/source/mass/cmr/950cmr.html

Specifically, by email you requested a copy of the Boston Ward 3
Precinct 5 Democratic specimen ballot for the September 6, 2012 election.
It is my
understanding it was your preference to be provided the specimen ballot by
electronic
mail.

In an August 24, 2012 response Mr. John Donovan from the City's Election
http://www.cityofboston.gov/elections/
Department (Department) offered to provide you with a hard copy of the
record
responsive to your request. In this response Mr. Donovan also informed you
that the
Department did not possess electronic copies of specimen ballots. Thereupon
this appeal
was submitted.

A record holder's duty to comply with requests for information extends only
to
records that are in existence and in his custody. There is no obligation to
create a record
in response to a public records request. See G. L. c. 4, s 7(26) (defining
"custodian" as
the public employee with routine access to or control of public records).
http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleI/Chapter4

Accordingly, a government agency would not be obligated to create
electronic records which essentially
produce a new record in response to a public records request. See G. L. c.
66, s 10(a); 32
Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a
record in
response to a request for information).
http://archive.org/details/reportofattorney1977mass

In a September 14, 2012 telephone conversation Mr. Sabino Piemonte from the
Management Office of the Department confirmed to Michael Pagones, an
attorney on my
staff, that the Department does not possess specimen ballots in electronic
format.

There is a presumption that public officials perform their duties in an
honest and
impartial manner. LaPointe v. License Bd. of Worcester, 389 Mass. 545, 459
(1983); See
also Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319,
326 (1992)
(presumption that public officials will perform honestly and impartially).
http://masscases.com/

Whereas the Department offered to provide you with a copy of the record
responsive to your request, and further whereas the Department has no
electronic copy of
the record in its custody, I will consider this administrative appeal
closed.

Very truly yours,
Shawn A. Williams, Supervisor of Records

cc: Mr. John Donovan, City of Boston Elections Department
http://www.cityofboston.gov/elections/

September 24, 2012
SPR12/251

The Commonwealth of Massachusetts
William Francis Galvin, Secretary of the Commonwealth
Public Records Division
Shawn A. Williams, Supervisor of Records
One Ashburton Place 17th Floor Room 1719
Boston Massachusetts 02108
http://www.sec.state.ma.us/arc/arcrmu/rmuidx.htm
tel 617 727-2832
fax 617 727-5914

ENSE PETIT PLACIDAM SVB LIBERTATE QVIETEM
She seeks with the sword a quiet peace under liberty
http://en.wikipedia.org/wiki/File:Coat_of_arms_of_Massachusetts.svg

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