Alfred Johnson v. Framingham, City of - Mayor's Office (SPR 20171587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 20, 2017 SPR17/1587 Nichol M. Figueiredo Town of Framingham 150 Concord Street Framingham, MA O1 702 Dear Ms. Figueiredo: I have received the petition of Alfred Johnson appealing the response of the Town of Framingham (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Johnson requested the "[t]otal dollar amount paid out by the Town of Framingham in settlement of Employee lawsuits for the period commencing Jan. 2013 to present Oct. 2017." Susan Embree, records access officer, responded to his request, indicating there are no records responsive to his request. Mr. Johnson appealed believing that records exist. 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, § 1O (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

Nichol Figueiredo SPRl 7/1587 Page 2 November 20, 2017 Possession, custody or control of responsive records In its October 31st response, the Town indicates that "[a]fter a diligent search, the Town determined that there are no records responsive to [Mr. Johnson's] request for the period commencing January 2013 to October 2017." Under the Public Records Law, the Town is not required to create a 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, § 6A(d); 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 possession, custody or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In Mr. Johnson's petition, he contests,the Town's response. Mr. Johnson indicates "at least 2 former Town of Framingham employees ... received 'employment lawsuit' settlements during the timeframe of years indicated in [his] request." Additionally, Mr. Johnson indicates that "as a former employee of the Town, [he knows] that every municipality is required to account for every dollar that comes in as well as every dollar that is paid out." Further, Mr. Johnson states that the "Town's Accounting, CFO/Assistant CFO, and/or Town Counsel's office should readily have this financial information in a payment receipt, document in Personnel file, within a spreadsheet in CFO's office as well as the related Town Counsel Office who oversaw this process." Based on the Town's response and Mr. Johnson's petition for appeal, it is unclear whether the Town possesses records responsive to the request. As discussed above, the Town has a duty to comply with requests for records that are in its possession, custody or control at the time of the request. Id. The Town must confirm whether or not it possesses responsive records. I understand a Public Records Division staff member contacted you about this matter and you indicated the Town would provide a response to Mr. Johnson addressing the issues raised in his appeal petition. Order Accordingly, I will consider this administrative appeal closed with the proviso the Town provide Mr. Johnson 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. Mr. Johnson may appeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1).

Nichol Figueiredo SPRl 7/1587 Page3 November 20, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Alfred Johnson