Maurice Felder v. Springfield, City of - Public Schools (SPR 20190918)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2019 SPR19/918 Anthony I. Wilson, Esq. Springfield City Clerk 3 6 Court Street Springfield, MA 01103 Dear Attorney Wilson: I have received the petition of Maurice Felder appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on April 7, 2019, Mr. Felder requested various categories ofrecords concerning an identified individual. 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 In a response letter dated April 29, 2019, the City expressed to Mr. Felder that, "[p] ersonnel in the Police Department have advised that there are no records that are responsive to your request. Please contact the Hampden District Attorney's Office, 50 State Street, Springfield, MA 01103." Unsatisfied by this response, Mr. Felder petitioned this office and as a result SPR19/918 was opened. 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

Anthony I. Wilson, Esq. SPR19/918 Page 2 May 14, 2019 Conclusion 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). In light of the issues raised in Mr. Felder's appeal regarding the existence of responsive records, and despite the City's response, I find it is unclear why responsive records have not been provided. Specifically, the City must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b )(ii). If such records were destroyed, the City must demonstrate whether it followed proper records retention protocol. Please be advised, the City must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the City to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Accordingly, the City is ordered to provide Mr. Felder with a response provided in a manner consistent with this order, the Public Records Law, and it's Regulations within 10 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: Maurice Felder