Erica A. Scott v. Fall River, City of - Office of the City Clerk (SPR 20180666)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2018 SPRlS/666 Alison M. Bouchard City Clerk Fall River- City Hall One Government Center Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition from Erica A. Scott appealing the response from the City of Fall River City Clerk's Office (City) regarding a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Originally, Ms. Scott sent a letter to the City on April 23, 2018 requesting records pertaining to the contracts between the "Watuppa Water Board/City of Fall River and Benn Water & Heavy Transport, Inc. /Clear River Energy Center (CREC)/Clear River Energy, LLC (CRE) /lnvenergy since December 2017 to the present." Also Ms. Scott requested records concerning a payment from Benn Water to the City in March 2018. The City responded on May~' 2018 to Ms. Scott providing her with requested records. The City also told Ms. Scott that there were no responsive records related to the continuation or renegotiation of the contract she was inquiring about in her April 23rd request. Ms. Scott in an email on May 8, 2018 made an appeal to this office stating the City "failed to provide [Ms. Scott] with either a complete response to [her] Public Records Request made April 23, 2018 or a written explanation of why [her] request was unfulfilled." Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § 10(a )-(b ). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 1O (b )(iii). 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

Ms. Alison M. Bouchard SPR18/666 Pg.2 May 21, 2018 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) (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). Ms. Scott states that the City failed to provide her with any new records from December 2017 to the present, as requested in the scope of her original request. It is unclear whether there are records responsive to Ms. Scott's request or if these records are in the City's possession. See G. L. c. 66, § 1O (b )(ii), (b )(iii). If the City is withholding documents regarding the contracts, the City must identify the withheld information, cite an exemption as the basis of the withholding and explain why the exemption applies. See G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the City is ordered to review the requests made by Ms. Scott and provide a response to Ms. Scott, made in accordance with the Public Records Law, its Access Regulations and this order 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. If unresolved issues remain, Ms. Scott may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, . Rebecca S. Mur~ Supervisor of Records cc: Ms. Erica A. Scott