Debra Waller v. Newton, City of - Law Department (SPR 20180207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 1, 2018 SPR18/207 Jonah Temple, Esq. City of Newton-Law Department 1000 Commonwealth A venue Newton, MA 02459 Dear Attorney Temple: I have received the petition of Debra Waller appealing the response of the City of Newton Law Department (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Waller requested a copy of: All records regarding Building Permit No. 16110711 for the dates 611/2016-3/23/2017, including emails. The request includes: all records with reference to the issuance of the permit and with reference to the February 28, 2017 Zoning Board of Appeals hearing on the permit. The request for emails includes: all internal newtonma.gov emails and all emails between newtonma.gov and external parties. The request also includes: any discussions of fire safety, the legality of putting a commercial solar array in a residential neighborhood and why a special permit was not required. The City provided responsive records on April 18th, April21 st, May lih, November 21st and November 30, 2017. Ms. Waller petitioned this office regarding the records she received in November 2017, contending that she is missing records that may be responsive to her requests. Previous appeals The requested records were the subject of previous appeals. See SPR17/674 and SPR17/1087 Determinations of the Supervisor of Records (Supervisor) (June 1, 2017 and August 25, 2017). In my determination for SPR17/674, I ordered the City to provide Ms. Waller with a supplemental response to explain whether the City had provided all the responsive records, and whether the City has withheld any records or portions of the records. In my determination for SPR17/ 1087, I addressed the questions that Ms. Waller raised concerning the City's petition regarding fees and any extension of time to provide the 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

Jonah Temple, Esq. SPR18/207 Page 2 March 1, 2018 Current appeal Ms. Waller appeals the City's provision of email records on November 21st and 301 h, contending that the City has not provided all the responsive emails and attachments and that the City did not provide her with the "Request for Zoning Enforcement of 14 and 16 Bonaire" with the 18 signatures which was filed with the City's Inspectional Services on June 8, 2012 (dated June 4, 2012). 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, § 1O A( 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, § 1O (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 ... "); 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). City's Request No. 17-125 The emails responsive to this request were provided to Ms. Waller on two compact discs on November 21, 2017 and November 30,2017. However, Ms. Waller states that two attachments are missing from, "record/0Young/TCP03FO and that the attachments are 'Summary of Deed Restrictions.pdf and '1969.pdf."' In addition, Ms. Waller contends that there may also be emails missing from the compact discs she received in November 2017. Further, Ms. Waller notes the dates of the outgoing emails are not included. The City must identify whether these records exist and if so, provide Ms. Waller with the remaining records or claim an exemption to withhold them. See G. L. c. 66, § 10(b)(ii) (written response must "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 records access officer serves"). City's Request No. 17-418 Ms. Waller indicated that she did not receive two email attachments labeled, "Rejection Letter" that Ms. Lougee sent to Mr. Levine on 4/20/13. The City must identify whether these

Jonah Temple, Esq. SPR18/207 Page 3 March 1, 2018 records exist and if so, provide Ms. Waller with the remaining records or claim an exemption to withhold them. See G. L. c. 66, § 1 O(b )(ii). City's Request No. 18-43 Ms. Waller informed this office that the City has not provided her with a copy of the Request for Zoning Enforcement filed with Inspectional Services on June 8, 2012, and has not claimed any exemptions in the Public Records Law to withhold the record. The City must identify whether this record exists and if so, provide Ms. Waller with the record or claim an exemption to withhold it. See G. L. c. 66, § 10(b)(ii). Obligations oft he City in responding A records access officer and/or record custodian must use their superior knowledge of the records to assist a requester in receiving the record requested. 950 C.M.R. 32.04(5)(a), (b). 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, § 1O (a)(ii). Ifthe City has withheld a responsive record, it has the burden of stating so and claiming an exemption. See 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). I find that the City has not met its burden in responding to Ms. Waller's requests, given that the City has not provided her with all of the requested records, or a response that identifies requested records that are not in the City's possession, or claimed any specific exemption or exemptions to withhold any requested records. See G. L. c. 66, § 10(b)(ii), (iv). It is my understanding that a Public Records Division attorney contacted the City regarding the appeal and the outstanding issues involved in Ms. Waller's public records requests. Order Accordingly, the City is ordered to provide Ms. Waller with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Murray Supervisor of Records cc: Debra Waller