Edward P. Sinni, Jr. v. Concord Fire Department (SPR 20190782)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 1, 2019 SPR19/0782 Chief Thomas M. Judge Town of Concord - Fire Department 209 Walden Street Concord, MA 01742 Dear Chief Judge: I have received the petition of Edward P. Sinni, Jr. appealing the response of the Town of Concord - Fire Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, in a letter dated March 8, 2019, Mr. Sinni requested: 1. Any documentation/code that details for residents what their rights and responsibilities are as they relate to upper floor (in my case second floor; that is above ground level), deck snow removal when decks are shared as mine is. 2. Any documentation/code that details for residents what their rights and responsibilities are as they relate to snow removal below upper floor decks (that have installed fire escapes in them particularly) specifically on the ground level to ensure that first responders have free, immediate and safe access to address emergencies without encumbrances as well as upper floor residents have a safe unencumbered second egress to flee an emergency. 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 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

Chief Thomas M. Judge SPR19/0782 Page 2 May 1, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's April 9, 2019 response In its April 9th response, the Department indicates that it "is working to determine whose responsibility it is to maintain the egress balcony and the slide to the ground. Whether it is the owner of the unit that has access to the egress balcony, or the condominium association, seem to be possible choices. The building code requires that 'All exterior stairways and fire escapes shall be kept free of snow and ice,' it does not, however, dictate who is responsible. It appears that the Condominium Association has rules and regulations that address the matter, so we will continue to engage Concord Greene to arrive at a solution." The Department additionally indicates that with respect to Mr. Sinni's "request for documentation/ or codes regarding this issue," the Department directs Mr. Sinni to "the Massachusetts Building Code, specifically Chapter 10, the Massachusetts Fire Code, and NFP A 101, the Life Safety Code." The Department explains that "[i]f [Mr. Sinni is] making a public record request according to M. G. L. Chapter 66, Section 10, for this information, please be aware that while building and fire codes are a public record, they are and produced by the National Fire Protection Association, then amended and adopted by the State of Massachusetts and are therefore not the Town of Concord's public record." The Department includes the language from referenced sections in its response and a link to where Mr. Sinni can access the sections online. Requestor's April 16, 2019 petition for appeal In his petition for appeal Mr. Sinni alleges that the Department has not provided "any code, law, ordinances etc" related to fire escapes and snow removal from patios. Mr. Sinni additionally identifies certain issues with fire escapes and requests the Department "address this as well, given that [the Department] is working with Concord Greene." Mr Sinni asserts that fire escape inspections done at Concord Greene "were not 'Registered Designed Professionals' ... nor were they 'approved' by anyone in Town due to skills, experience or any other Town criteria for that matter. Given this, said inspections should be invalid, redone by a Registered Design Professional etc and as a result requires [the Department's] attention as well as with the attention of other Town departments." The Department's April 19, 2019 response While this appeal was pending, the Department provided another response to this office on April 19, 2019. In its April 19th response, the Department indicates that Mr. Sinni "is seeking

Chief Thomas M. Judge SPR19/0782 Page 3 May 1, 2019 building and fire codes. The Town of Concord is not the Keeper of the Records for those documents, they are documents of the State of Massachusetts. [The Department has] directed him to the appropriate agencies with links to the documents." The Department additionally indicates that "[w]ith the exception of [Mr. Sinni's] most recent request, [the Department is] not the [custodian] for anything [Mr. Sinni] has requested." No duty to create records Under the Public Records Law, the Department is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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, § 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). Whereas, the Department has identified the agency that may be in possession of the information Mr. Sinni is requesting and confirms it is not the "Keeper of the Records for those documents," nor is it the custodian of the records Mr. Sinni has requested, I find the Department has met its burden in responding to this request. See G. L. c. 66, § lO(a)(ii), (b)(ii-iii). Mr. Sinni is advised that under the Public Records Law, the Department is not required to create a record, answer questions or do research in response to a Public Records request. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Sinni is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Edward P. Sinni, Jr.