Adam Vaccaro v. Everett, City of - Solicitor's Office (SPR 20160624)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 2, 2016 SPR16/624 Ms. Colleen Mejia, Esq. City Solicitor City of Everett Everett City Hall 484 Broadway Everett, MA 02149-3694 Dear Attorney Mejia: I have received the petition of Adam Vaccaro appealing the response of City of Everett - Office of the City Solicitor (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Vaccaro requested "any federal subpoenas served to [C]ity officials and employees since January 2014, and any documents sent from the [C]ity in response to the subpoenas." In a response dated July 7, 2016, the City denied the request pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). 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, § 10 ( c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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, § lO(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. 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). To meet the specificity requirement a custodian must not only OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Colleen Mejia, Esq. SPR16/624 Page 2 September 2, 2016 cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a 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 ($1 0.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer 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. The City's July 7 response In the City's July 7 response you state "the City can neither confirm nor deny whether such documents exist." You further explain "[a]ssuming, solely for the purpose of providing a complete response to your request and without admitting or denying the same, that the City does have documents responsive to your [r]equest, due to the nature of the documents being requested, such documents would be protected from disclosure pursuant to [E]xemption (f) to the Public Records Law." Unclear ift he City possesses responsive records Based on the City's response, it is unclear if it possesses any records responsive to Mr. Vaccaro's request. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). In addition, the City has not explained why it cannot confirm or deny the existence of responsive records. I understand an attorney on my staff contacted the City about this matter. Applicability ofE xemptions Due to ambiguity regarding the existence of responsive records, I find the City has not met its burden to withhold responsive records, if any, under Exemption (f). It is unclear what type of records would be withheld and how disclosure could alert suspects to the activities of investigative officials, reveal confidential investigative techniques, or disclose the identities of voluntary witnesses, informants or complainants. Therefore, it is unclear how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that

Ms. Colleen Mejia, Esq. SPR16/624 Page 3 September 2, 2016 such disclosure would not be in the public interest" as required by Exemption (f). See Reinstein v. Police Commissioner of Boston, 3 78 Mass. 281, 290 n.18 (1979); Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Order Accordingly, the City is hereby ordered to provide Mr. Vaccaro with a revised written response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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 offi at pre@sec.state.ma.us. cc: Mr. Adam Vaccaro