Joseph Viglione v. Medford, City of - Public Schools (SPR 20171403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 17, 2017 SPR17/1403 Kimberly M. Scanlon Assistant City Solicitor Records Access Officer City of Medford 85 George P. Hassett Drive Medford, MA 0215 5 Dear Attorney Scanlon: I have received the petition of Joe Viglione appealing the response of City ofMedford (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Viglione is appealing the City's response to his request for "[an identified individual's] contract with the city of Medford or any similar agreement that the city has with [an identified individual]. If no contract exists memos, e mails or notes will be required outlining [an identified individual's] job description" ("job description") and "a list of programs that [an identified individual] is airing instead of Medford access TV" ("list of programs"). Attorney Kimberly Scanlon, records access officer, responded to his request, providing responsive records to his "job description" request, and denying his "list of programs" request claiming the City is not in possession of the responsive records. Unsatisfied with the City's response, Mr. Viglione petitioned this office and this appeal was opened as a result. 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, § 10(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 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

Kim Scanlon SPR17/1403 Page2 October 17, 2017 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. No duty to create records; Use of custodian's superior knowledge Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). The City's Response In the City's response, it indicates its attachment of a document identified as "City of Medford Station Manager Responsibilities and Duties" as a responsive record to Mr. Viglione's request for an identified individual's "job description." The City further indicates in regards to Mr. Viglione's request for the "list of programs," that it "is not in possession of any documents that relate to this request" and explains "since the public access station and community media center is located within Medford High School, this is a request for the Medford Public Schools Records Access Officer." In his appeal, Mr. Viglione indicates "[the identified individual] told · [Mr. Viglione] [he or she] works for the city" and asserts "[t]he City must have these documents if [the identified individual] works for the city." "Job description" In regards to the "job description" request, although the City provided a responsive record, it is unclear whether it possesses any other records responsive to Mr. Viglione's request. Specifically, the City must confirm whether it possesses a "contract" or "similar agreement" between the City and the identified individual and if not, whether it possesses any other responsive "memos, e mails or notes" regarding the identified individual's job description. 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The City must clarify this matter.

Kim Scanlon SPR17/1403 Page 3 October 17,2017 "List ofp rograms" In regards to the "list of programs" request, although the City states it is not in "possession" of responsive records and identifies the Medford Public Schools as the custodian, it is unclear why the City is not the custodian of the responsive records. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). Each municipal or governmental entity or agency shall have a designated "records custodian." The city clerk shall serve as records custodian unless a particular board or committee appoints an individual who shall be in charge of maintaining, storing and keeping the public records of such agency or entity by local by-law or ordinance. G. L. c. 66, § 7. Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. Please be advised, wherever a record custodian keeps original public records in a location other than the municipal building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Given that the City Clerk is statutorily designated as the custodian of the requested records, the City's response does not explain why it cannot produce the responsive records. The City must clarify this matter. Order Subsequent to the intervention by a staff member of the Public Records Division, T learned that a representative from the City intends to provide Mr. Viglione with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the City provides said response 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 ofthis response to this office at pre@sec.state.ma.us. Mr. Viglione may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Viglione