Greg Gallant v. Methuen, City of - City Clerk (SPR 20190716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 19, 2019 SPR19/716 John J. Wilson, Jr., Esq. City Clerk City of Methuen 41 Pleasant Street, Room 112 Methuen, MA O1 844 Dear Attorney Wilson: I have received a petition from Greg Gallant appealing the response of the City of Methuen City Clerk (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Originally, Mr. Gallant sent a request to the City on March 20, 2019 seeking "[a]ll Electronic Data generated or received by you, wherever stored including on devices which you or any member of your household own, during the open Methuen City Council held on March 18, 2019." The City provided a response on April 3, 2019. Mr. Gallant made an appeal to this office on April 4, 2019 stating that the City was in non-compliance. Mr. Gallant said that the City should "comply with request and provide the body of texts sent and received, as well as phone log information, and other information as requested." 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 ofreceipt 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, § 1O (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 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

John J. Wilson, Jr., Esq. SPR19/716 Pg. 2 April 19, 2019 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). It is unclear if the City possesses the records Mr. Gallant claims are missing from his public records request. See G. L. c. 66, § lO(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, § IO(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). It is also unclear what exemption the City cited when redacting and withholding documents. If the City intends 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. Gallant 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: Greg Gallant