Colman Herman v. Fall River, City of - Office of the Corporation Counsel (SPR 20190574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2019 SPR19/574 Hon. Joseph I. Macy, Esq. Office of the Corporation Counsel Fall River- City Hall One Government Center- Room 627 Fall River, MA 02722 Dear Hon. Macy: I have received the petition from Mr. Colman Herman appealing the nonresponse from the City of Fall River's Office of the Mayor (City) regarding a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Mr. Herman sent a request on March 3, 2019 to the City for "hard copies and electronic copies of the daily calendar of the Mayor." In an email on March 20, 2019, Mr. Herman filed an appeal with this office stating the City has not responded to his request. 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, § lO(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, § lO(b)(iii). 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 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

Hon. Joseph I Macy, Esq. SPR19/574 Page 2 April 3, 2019 burden of establishing the applicability of an exemption). It is unclear if the City possesses the records requested by Mr. Herman. See G. L. c. 66, § 10( a)(ii), (b )(ii), (iii). 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, § 10( 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, § lO(b)(iii). If the records are within the City's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). Accordingly, the City is ordered to review the requests made by Mr. Herman and provide any requested records 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman