C.J. Ferry v. Fall River, City of - Office of the Corporation Counsel (SPR 20160109)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 10, 2016 SPR16/109 Mayor Jasiel Correia II City of Fall River One Government Center Fall River, MA 02722 Dear Mayor Correia: I have received the petition of C. J. Ferry appealing the nonresponse ofthe City ofFall River-Corporation Counsel (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Ferry requested a number of records in regards to "all agreements with Joseph Lombardi and Sunrise Scavengers." Having received no response, Mr. Ferry petitioned this office. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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. Subsequent to the intervention by a member of my staff, this office was notified on March 01, 2016 that the City cannot provide a response to this records request at this time because "the subject matter to which (Mr. Ferry) is inquiring is currently in the midst of open bidding." Even so, according to the Public Records Law and Regulations, the City must make a written response to Mr. Ferry and on a timely basis. 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Accordingly, I will consider this appeal closed with the proviso that the City provides a written response to Mr. Ferry within (10) ten days. Mr. Ferry may appeal the substantive nature ofthe City's response within ninety (90) days. See 950 C.M.R. 32.08(2). If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Ferry a written explanation, with OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mayor Jasiel Correia SPR16/109 Page2 March 10, 2016 specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in responding to requests for public records I refer the City to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Mr. Ferry may appeal the substantive nature of the City's response within ninety (90) days. See 950 C.M.R. Vryw 32.08(2). n A. Williams cc: Mr. C.J. Ferry