Erica Kennedy v. New Bedford, City of - Clerk's Office (SPR 20190730)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 17, 2019 SPR19/730 Elizabeth Treadup Pio New Bedford Clerk's Office 133 William Street, Room 203 New Bedford, MA 02740-6163 Dear Elizabeth Treadup Pio: I have received the petition of Erica Kennedy of Whisk & Jane, LLC appealing the non response of the City of New Bedford (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically Attorney Kennedy requested, "all Zoning Board of Appeals Variances and Planning Board Special Permit Approvals granted between January 1, 2019 [t o present]." 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, § lOA(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, § 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, § lO(b)(iv); 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). 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 It is my understanding that the City provided Ms. Kennedy a response dated April 9, 2019. In the April 9th response, the City provided Ms. Kennedy some records responsive to her request. In addition the City states, "we are seeking clarification of a portion of your request and would like to discuss narrowing the scope to ensure you access the records you seek in a timely manner and in a way that is not unduly burdensome to the Planning Office." 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

SPR19/730 Elizabeth Treadup Pio Page2 April 17, 2019 Conclusion In light of the City's April 9th response, this office encourages the City and Ms. Kennedy to communicate further to enable the City to provide the requested public records. G. L. c 66, § 1O (a)(i) (the request must reasonably describe the public record sought). 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). Whereas this matter was opened based upon the City's failure to provide a response, I will now consider this administrative appeal closed. If unresolved issues remain, Ms. Kennedy may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~urr~ Supervisor of Records cc: Erica Kennedy