George J. Rotondo v. Revere, City of - Office of the City Clerk (SPR 20171151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 201 7 SPR17/1151 Ashley E. Melnik Office of the City Clerk City of Revere 281 Broadway Revere, MA 02151 Dear Ms. Melnik: I have received the petition of George Rotondo appealing the response of the City of Revere (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rotondo requested electronic communications between certain individuals regarding particular topics from January 1, 2016 to the date of the request. Mr. Rotondo appealed, indicating he did not receive all responsive records. 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. Current appeal In Mr. Rotondo's appeal petition he indicates that despite paying a fee to the City, he believes he did not receive all responsive records. Subsequent to the opening of this appeal, this office was informed that the City provided a response dated August 29, 2017 in which it 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

Ashley E. Melnik SPRl 7/1151 Page 2 September 1, 2017 addresses Mr. Rotondo' s concerns about the number of records provided. The City explains "although the search turned up 952 emails that doesn't mean that all 952 are responsive to your request. Of the 952,240 were responsive to your request and of the 240, 51 were withheld per the Deliberative Process Exemption explained above. The [C]ity released 189 emails to you." The City also notes it is "proposing is to have MIS make each email a separate .pdf file, so that you will have the same number of .pdf files as emails, 189. This will help clarify the number of emails turned over to you." In an email to this office dated August 30, 2017 Mr. Rotondo indicates "the information requested has nothing to do with the formation of policy. I am requesting emails surrounding the funding of a park, the development of Suffolk downs. [e]tc." Mr. Rotondo continues to raise questions about the number of responsive records. Please note 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. See G. L. c. 66, § lO(a)(ii). Further, based on the City's response, it is unclear how Exemption (d) applies to withhold certain responsive records. Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted you and provided you a copy of the file associated with this appeal. You indicated the City would provide a supplemental response to Mr. Rotondo. Conclusion Accordingly, I will consider this appeal closed with the proviso that the City provide a response to Mr. Rotondo, prepared 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, fMlvUA~ Rebecca S. Murray Supervisor of Records cc: George Rotondo