Debra Waller v. Newton, City of - Law Department (SPR 20170674)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2017 SPR17/674 Jonah Temple, Esq. Assistant City Solicitor City of Newton Law Department 1000 Commonwealth A venue Newton, MA 02459 Dear Attorney Temple: I have received the petition of Debra Waller appealing the response of the City of Newton Law Department (City) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Waller requested a copy of the following: All emails, meeting reports, phone call reports (if available) and document or site reviews regarding Building Permit No. 16110711 for the dates 6/1/2016-3/23/17. This request includes: all records with reference to the issuance of the permit and with reference to the February 28, 2017 Zoning Board of Appeals hearing on the permit. The request for emails includes: all internal newtonma.gov emails and all emails between newtonma.gov and external parties. This request also includes: any discussions of fire safety, the legality of putting a commercial solar array in a residential neighborhood and why a special permit was not required. Ms. Waller received a letter dated 3/1/2017 from Bruce Proia (Chief, Newton Fire Department) and John Lojek (Commissioner, Newton Inspectional Services Department) describing meetings with representatives of Newton-Wellesley Hospital and General Electric Solar on the proposed solar array. The request relating to this letter includes: the dates of the referenced meetings, the names and job titles of the representatives from Newton-Wellesley Hospital and General Electric Solar at the meetings, the names and job titles of the Newton government staff at the meetings, and any record of what was discussed; includes all records from Inspectional Services, the Law Department and the Executive Offices of the City of Newton. The City provided responsive records on April 181 April 21st and May 12, 2017. \ However, Ms. Waller has asked the City to confirm that the email record received, named "Lojek_Levine~0301_2017," is the complete email record, and if not, what has been redacted 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

Jonah Temple, Esq. SPRl 7/674 Page 2 June 1, 2017 and under which exemption in the Public Records Law. To date, the City has not provided her with a written response to this inquiry. In a May 16th email, you stated, "Pursuant to the public records law, we are not obligated to answer questions. The City has no further response to request number 17-49." Ms. Waller appealed. 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, § 1O A( 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, § 1O (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. 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.scc.state.ma.us/pre/prepdf/guide.pdf. Attorneys on the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division 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. Obligation of the records access officer (RAO) On May 15t\ Ms. Waller emailed the City's RAO, David Olsen, to ask whether she had received all the content of the March 1, 2017 email record from John Lojek to Howard Levine. You responded to Ms. Waller via email on May 16th informing her that the City is not required to answer questions under the Public Records Law. On May 161 Ms. Waller again tried to receive \ an answer to her inquiry regarding possible redaction of a public record. She asked, "Is the email record complete or was there material deleted from the email record?" Generally, a records access officer is not required to answer questions, or create a record in response to a public records request. See G. L. c. 66, § lO(a); 32 Op. Atty. Gen. 157, 165 (May 18, 1977). However, an RAO and/or record custodian must use their superior knowledge of the records to assist a requester in receiving the record requested. 950 C.M.R. 32.04(5)(a), (b). The duty to comply with requests for records extends to those records that exist and are in the

Jonah Temple, Esq. SPRl 7/674 Page 3 June 1, 2017 possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). If content from a record has been redacted, the City has the burden of stating so and claiming an exemption. See G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). I find that the City has not met their obligation under the Public Records Law in explaining whether the record Ms. Waller received is the complete record, or whether the records was redacted under one of the enumerated exemptions in the Public Records Law. Order Accordingly, the City is hereby ordered to provide Ms. Waller with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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, Rebecca S. Murray Supervisor of Records cc: Debra Waller