Jose Cruz v. Holyoke, City of - City Clerk (SPR 20180795)

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

Rebecca S. Murray Supervisor of Records

June 18, 2018 SPR18/795

Brenna McGee

City Clerk/Registrar of Voters City of Holyoke

536 Dwight Street, Room #2 Holyoke, MA 01040

Dear Ms. McGee:

I have received the petition of Jose Cruz appealing the response of the City of Holyoke (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 19, 2018, Mr. Cruz requested: “a list of all employees along with a photo I.D. of each who worked for the Parks and Recreation Department during the summer of 1985 and the summer of 1986.”

Previous appeal — SPR18/672

On April 20, 2018, the City informed Mr. Cruz that, “[p]ursuant to the Massachusetts State Retention Schedule, Personnel Files must only be kept for 20 year. Therefore, the city is no longer in possession of your requested documents.”

After receiving the City’s response, Mr. Cruz sent an April 21“ email modifying his original request. In his April 21“ email request, Mr. Cruz states, “[h]ello Brenna, I will accept the names and copy of photo id of males who worked in the Parks and Recreation Department twenty years ago or earlier.”

On April 25", Mr. Cruz made a request to Paul Payer, stating, “[p]ursuant to the Freedom of Information Act I am requesting the names ([i]cluding copies of photo IDs) of all male employees who worked for the Parks and Recreation Department twenty years ago or earlier, preferably earlier.” Mr. Payer did not respond to the request within ten (10) business days, as a result, Mr. Cruz petitioned the Supervisor of Records (Supervisor), and an appeal was opened regarding the non-response. See SPR18/672 Determination of the Supervisor (May 23, 2018). In my May 23, 2018, I ordered the City to provide Mr. Cruz with a response to the modified request.

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

Brenna McGee SPR18/795 Page 2 June 18, 2018

Current appeal — SPR18/795

On May 30, 2018, the City provided Mr. Cruz with a response to his modified public records request for: “{t]he names ([i|cluding copies of photo IDs) of all male employees who worked for the Parks and Recreation Department twenty years ago or earlier, preferably earlier.”

In the May 30" response, you informed Mr. Cruz, “[a]fter a diligent search, the City was not able to locate a record of a list specifying all male employees employed with the Parks and Recreation Department in the summer of 1985 and summer of 1996. Nor does the City have any record of employee photo IDs from said period of time.” A review of the City’s May 30" response reveals that although the City had no duty to create a record in response to the initial and/or modified request, the City populated payroll records from the specified period of time in the initial and modified request. With its May 30" response, the City provided Mr. Cruz with a spreadsheet listing the employee names and employee identification numbers for all male employees of the City’s Parks and Recreation Department employed by the City during the respective month and years of September 1984, August 1985 and July 1987.

In a June 18" discussion with a Public Records Division attorney, you explained that the City conducted a diligent search for and reviewed payroll records to create a list of the Parks and Recreation Department employee names and identification numbers for 1984, 1985 and 1987. After this diligent search, the City could not locate any employee payroll records for 1986. Nor, does the City have any employee identification photos for the respective years requested by Mr. Cruz. 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).

Modified request

On June 5", Mr. Cruz petitioned the Supervisor indicating that he modified his request, seeking the names and employee identification photos of all male employees of the Parks and Recreation Department who worked in that department twenty years ago (1998) or earlier. A review of Mr. Cruz’s appeal file reveals that he sent this modified request to Paul Payer, the City Solicitor on April 21%. It is my understanding that you have no knowledge of whether Attorney Payer responded to the April 21 modified request for employee names and identification photos of Park and Recreation Department employees from 1998 or earlier. Given that the City may not have responded to the April 21 request, I find that the City has not met its burden under the Public Records Law.

Conclusion Accordingly, the City is hereby ordered to respond to, and provide any records in the

City’s possession that are responsive to, Mr. Cruz’s April 21" modified request in a manner consistent with the Public Records Law, its Regulations and this order within ten (10) business

Brenna McGee SPR18/795 Page 3 June 18, 2018

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,

Felacea. Mumary,

Rebecca S. Murray Supervisor of Records

cc: Jose Cruz Paul Payer, Esq., City Solicitor