Trottier, Mark v. North Adams, City of (SPR 20150823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords December 23, 2015 SPR15/823 Mr. Joshua Moran, Chair City of North Adams 1 0 Main Street North Adams, MA 01247 Dear Chairman Moran: I have received the petition of Mark Trottier appealing the nonresponse of the City of North Adams (City) to his request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Trottier requested a copy of the draft meeting minutes from the August 24, 2015 City Council-Public Service Committee meeting "Regarding Accessibility of Public Records/Open Checkbook Systems". Having received no response, Mr. Trottier petitioned this office. The City failed to meet its burden in providing a response to a request for public records. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) days of the request. G. L. c. 66, § 1 O(b ); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The City is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. By telephone on November 5, 2015 a member of my staff had a conversation with the City's Records Officer Michael Canales. Mr. Canales stated that he believes that your "handwritten notes" from the August 24 meeting are exempted from disclosure as these handwritten notes are your personal notes and not the draft minutes and as such are not subject to the Public Records Law. Mr. Canales further stated that the Committee does not have a secretary and that you take notes at the public meetings and then you make a "draft" based on your notes which are subsequently submitted to the Committee for approval. The Public Records Law states that "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(c). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995) (a government agency that refuses to comply with a request for disclosure has burden of proving the information requested is within one of the enumerated exemptions). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Joshua Moran, Chair SPR15/823 Page Two December 23, 2015 Given that the ability to inspect the records of government is fundamental to our democracy, there is a presumption that all governmental records are public records. Disclosure of governmental records is favored by the presumption that the record sought is public. G. L. c. 66, § IO(c); 950 C.M.R. 32.08(4). See The Harvard Crimson, Inc. v. President & Fellows of Harvard College; Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). Moreover, this office believes that all records made or received by a governmental body, officer or employee of the Commonwealth are public records, subject to redaction, and that the records must be disclosed upon request. G. L. c. 66, § 10(a); see also In re Subpoena Duces Tecum, 445 Mass. 685, 687 n.3 (2006). As of this date, no further details have been submitted in support of your position or to overcome this presumption. Therefore, I find that the presumption stands and the records must be made available in accordance with the Public Records Law. Please note that in order to withhold a record requested pursuant to the Public Records Law, the record custodian is charged with the duty of proving with specificity how a particular exemption applies to each individual record requested. (emphasis added). See G. L. c. 66, § 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian must offer specific proof that the records sought are of a type to which an exemption applies). I find the City has failed to respond to a request for public records, and has failed to rebut any presumption that the requested records are public records. The City was provided with not only Mr. Ti·ottier's request, but also an acknowledgment from this office dated October 30, 2015 providing an appeal number and notice that a public records appeal had been opened by this office. Accordingly, The City is hereby ordered, within ten (1 0) days, to review the requests made by Mr. Trottier and provide a written response to him, made in accordance with the Public Records Law, its Access Regulations and this order. . A copy of any such response must be provided to this office. It is preferable to send an electronic copy this response to this office at pre@sec. state.ma. us. cc: Mr. Mark Trottier