C.J. Ferry v. Fall River, City of - Office of the Corporation Counsel (SPR 20160271)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords May 16,2016 SPR16/271 Mr. Joseph I. Macy, Esq. City of Fall River Office of the Corporation Counsel One Government Center Fall River, MA 02722 Dear Attorney Macy: I have received the petition of C. J. Ferry of Spindle City Straight Talk appealing the response of the City of Fall River- Corporation Counsel (City) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Mr. Ferry requested a copy of several categories of records regarding a specifically identified person. On April13, 2016, the City provided Mr. Ferry with a copy of the "Job Posting" for the Director of Community Maintenance, the "Request to Fill Job Vacancy" for the job position of Director of Community Maintenance, and the written "Job Description" for the Director of Community Maintenance. In your response you further state that certain information was redacted from the responsive records. Mr. Ferry appealed your response, informing this office in his petition that the records provided by the City are not responsive to his requests. In your response you explained that currently the City has no records responsive to portions of Mr. Ferry's requests. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10 ( a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). It is unclear whether the City has provided all responsive records or whether certain records were withheld from disclosure. Accordingly, I find the City has failed to properly respond to a request for public records. The City is hereby ordered, within ten (10) days of this order, to provide Mr. Ferry with a response to the requests, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Ferry a written explanation, with specificity, how a particular exemption applies to each record. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Joseph I. Macy, Esq. SPR16/271 Page 2 May 16,2016 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. I(there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 the City in responding to requests for public records I advise a review of 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 below for further in£ ation . . Williams cc: Mr. C. J. Ferry