James Ljunggren v. Department of Fire Services (SPR 20170209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2017 SPR17/209 MaryElizabeth Lynch-Lent Paralegal Department of Fire Services PO Box 1025 - State Road Stow, MA 01775 Dear Ms. Lynch-Lent: I have received the petition of James Ljunggren appealing the response of the Department of Fire Services (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on January 10, 2017, Mr. Ljunggren requested two (2) categories of records. The Department provided a response to Mr. Ljunggren in a letter dated February 2, 2017. Mr. Ljunggren appealed, claiming there are other responsive records he has not yet been provided. 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, § lOA(d); 950 C.M.R. 32.03(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). 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, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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 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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

MaryE lizabeth Lynch-Lent SPR17/209 Page2 February 22, 2017 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. Current appeal In its February 2nd response, with respect to category 1, the Department provided responsive records and also explained the Department was "unable to locate" a particular individual's email archive. With respect to category 2, the Department provided records and indicated "[s]ee attached documentation in the possession of this agency and its divisions." In his appeal petition, Mr. Ljunggren explains "a written report about me, which has been referenced in numerous emails, has been intentionally omitted from the requested documentation." The Department must clarify whether it possesses any other responsive records. See G. L. c. 66, § lO(a)(ii) (the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request). I understand an attorney on my staff contacted you and provided a copy of the file associated with this appeal. You indicated the Department would provide Mr. Ljunggren a supplemental response. Conclusion Accordingly, I will consider this administrative appeal closed with the proviso that the Department provides Mr. Ljunggren a response made in compliance with this order, the Public Records Law, and its Regulations, with ten (10) business days. 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. Sincerely, ~urr~ Supervisor of Records cc: James Ljunggren