Jo C. Goode v. Fall River, City of - Office of the Corporation Counsel (SPR 20180052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

January 26, 2018

SPR18/052

Joseph I. Macy, Esq. Corporation Counsel City of Fall River

One Government Center Fall River, MA 02722

Dear Judge Macy:

I have received the petition of Jo C. Goode of The Fall River Herald News appealing the response of the City of Fall River Corporation Counsel (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Goode requested:

The administration’s plan to respond to a recent Superior Court order regarding the lawsuit against the City of Fall River Office of Economic Development, including how the City plans to review emails regarding Mayor Jasiel F. Correia, II and the City Administrator Cathy Ann Viveiros, their deleted text messages from City issued cell phones and Mayor Correia’s private Gmail account, the identity of any third party entity which will assist the City and the cost.

The City provided a December 22, 2017 response. Finding the response unsatisfactory, Ms. Goode appealed to this office, and this appeal was opened.

Appeals to the Supervisor of Records

It appears that Ms. Goode did not provide a copy of her petition for an appeal to the City; therefore, a Public Records Division staff member provided a copy of the appeal file to the City. Ms. Goode is advised that in petitioning the Supervisor of Records, “the requester must provide a

copy of such petition to the records access officer associated with such petition.” 950 C.M.R. 32.08(1)(h).

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.MLR. 32.03(4). “Public

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

Joseph I. Macy, Esq. SPR18/052 Page 2 January 26, 2018

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 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, § 10(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 December 22, 2017 response

The City’s December 22™ response states, “[l]itigation strategy, whether committed to writing or not is not subject to a public records request. There is no legal necessity or requirement to reduce such strategy to writing, even if there were it would not be a public record. Therefore, nothing will be produced in response to your request.”

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). 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).

However, upon a review of the City’s response, it is unclear whether the City has any documentary material or data that is responsive to the request. When responding to a public records request, the records access officer (RAO) shall identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the RAO serves. See 950 C.M.R. 32.06(2)(c)(ii).

“A public record is broadly defined to include all documentary materials or data, regardless of physical form or character...” G. L. c. 4, § 7(26). Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based...”) ; see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

I find that the City did not meet its burden of stating whether it has a record responsive to the request, and if so, the City did not meet its burden of claiming an exemption and explaining

Joseph I. Macy, Esq. SPR18/052 Page 3 January 26, 2018

how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are

not blanket in nature). The City must produce any non-exempt, segregable portion of a public record. G. L. c. 66, § 10(a).

It is my understanding that an attorney in the Public Records Division contacted you to discuss this appeal, but was unable to reach you directly.

Order :

Accordingly, the City is hereby ordered to provide Ms. Goode with any responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Fulerea Munnar,

Supervisor of Records

cc: Jo C. Goode