David M. Delprete v. Framingham, Town of - City Solicitor (SPR 20181543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 5,201 8 SPRl811543 Chris Brown, Esq. City of Framingham 372 Union Avenue Framingham, MA 0 1702 Dear Attorney Brown: I have received the petition of Mr. Delprete appealing the response of the City of Framingham (City) to his request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Delprete requested "any and all emails between ( To and From). . . between the dates of August lst, 2018 and October 3rd 201 8" of certain named individuals. The City provided a response dated October 3,2018. Unsatisfied with the City's response, Mr. Delprete appealed and SPR1811543 was opened as a result. 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, 5 10A(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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 4 19 Mass. 507, 5 11 (1 995) (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. Current Appeal In the City's October 3rdr esponse, they indicated the request was "put on hold" and the City requested "an extension of 25 business days for time spent searching for, compiling, 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

Chris Brown, Esq. Page 2 November 5,201 8 segregating, redacting and reproducing the requested emails." Mr. Delprete is appealing the City's response because "these requested items are time sensitive." Mr. Delprete explains "[tlhere is a scheduled hearing on 10123118 these requested items are time sensitive" and it is his belief "that these requested documents will have vital information.. ." Burden of specificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to 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 51 1. The City did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 8 lO(b)(iv); 950 C.M.R. 32.06(3)(~)(4)H. ere, the City indicates they need 25 business days "spent searching for, compiling, segregating, and redacting" the requested records. However, the City has not met the burden to explain the applicability of an exemption for redacting the requested records. G. L. c. 66, § 1O (b)(iv) Therefore, the City must explain the applicability of an exemption for redaction. Conclusion Subsequent to intervention of a Public Records staff member, the City indicated they intend on providing Mr. Delprete with the responsive records to his request within the next week. Given that the City did not meet its burden to explain how an exemption applies to the records, the City is ordered to provide Mr. Delprete with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations without delay. 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, L.l Rebecca S. Murray Supervisor of Records cc: David Delprete