Stephen Phillips v. Springfield, City of - Office of the City Clerk (SPR 20171056)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 15, 2017 SPR17/1056 Anthony I. Wilson, Esq. City of Springfield Office of the City Oerk 36 Court Street· Springfield, MA 011 03 Dear Attorney Wilson: I have received the petition of Stephen Phillips, Esq. appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on May 26, 2017 and July 31, 2017, Attorney Phillips requested the following information: 1. Under what specific section of the City Charter authorizes the Mayor to issue Executive Orders that carry the weight of law; with such authority that supersedes the legislative body of the City? Please state the specific language. 2. Under what specific section of Massachusetts Civil Service law authorizes the Mayor to issue Executive Orders that supersedes the power and authority of the police Commissioner? Please state the specific language. The City provided a response on August 3, 2017. Attorney Phillips contends the response provided was not responsive to his request and petitioned this Office. 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, § 10A(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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Anthony Wilson, Esq~ SPR17/1056 Page 2 August 15, 2017 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. The City's August response 3rd In its August 3rd response, the City indicated for request number one," ... [d]uring our review of certain Emails received following a FOIA petition to the City, an Email dated February 3, 2017 was brought to our attention to you from Lieutenant Stephen Wyszynski wherein he writes :[t]here is no responsive email from Solicitor Pikula to Lieutenant Wyszynski." Also, in response to the second request, the City indicated that "[p]lease see the City's prior response dated 05/18/2017, for the legislation creating the CPHB." No duty to create records Under the Public Records Law, the City is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the City explains it does not possess any documents responsive to request number one and has provided a copy of the legislation creating the CPHB in response to request number two, I find that Attorney Phillips' appeal related to the first and second requests are resolved. Conclusion Accordingly, whereas the City explained it does not maintain records responsive to request number one, and is not required to answer questions in response to a request, I will consider this administrative appeal closed. Sincerely, RWwA~ Rebecca S. Murray Supervisor of Records cc: Stephen Phillips, Esq.