Chris Burrell v. Lawrence, City of - Office of the City Clerk (SPR 20191072)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/1072 William Maloney City Clerk/Records Access Officer Office of the City Clerk City of Lawrence 200 Common Street Lawrence, MA O1 840 Dear Mr. Maloney: I have received the petition of Chris Burrell of WG BH appealing the response of the City of Lawrence (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 7, 2019, Mr. Burrell requested" ... documents or records from Lawrence that show the number of rooming houses and related units licensed by the City currently, and each year going back to 2009 .... " On May 20, 2019, the City provided a response, which included a responsive document. After several correspondences between the City and Mr. Burrell, the City provided another response on May 28, 2019, indicating it has no additional information concerning this request. Unsatisfied with the City's responses, Mr. Burrell petitioned this office and this appeal, SPRl 9/1072, was opened as a result. While this appeal was pending, the City provided a supplemental response dated May 29, 2019. 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. 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

William Maloney SPR19/1072 Page 2 June 4, 2019 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 City's May 20th, May 2B1h and May 29th responses In its May 20, 2019 response, the City attached a list of rooming houses. On May 24th and May 28th, Mr. Burrell inquired whether the City had data on the number of rooming houses in the past 10 years. In the City's May 28, 2019 response, the City attached the previous list and indicated that it " ... has no additional information concerning this matter" other than what has already been provided. The City advised Mr. Burrell to contact it if it needs more documents. In its May 29, 2019 supplemental response, the City outlined its communications with Mr. Burrell. The City also clarified that in a telephone conversation with Mr. Burrell it informed him that" ... the records of rooming houses has been the same for each year since 2009." As such, there are no additional records to provide. No Duty to Create Records Please be advised, under the Public Records Law the City is not required to create a record in response to a public records request. See G. L. c. 66, §6A( d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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 ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). Whereas the City has provided a responsive document and indicated that it does not possess additional responsive records, I find that Mr. Burrell's appeal pertaining to this request has been resolved. Also, in the City's May 29th supplemental response, it states" ... both staff in the Inspectional Services Office who maintain the type of record information subject to Mr. Burrell's request ... do not know what [he] is asking to obtain. At this point, no one seems to know what record is being requested by Mr. Burrell and despite being asked on 5-24-19 by the [ROA] [sic] 'if you have additional requests for records, please send them to [the City's] attention and they will be processed.' - the requestor has not asked for additional records. If Mr. Burrell be clear about what records he is asking to obtain then the department maintaining [t]he record could attempt to provide the documents [if they exist]." In light of the above, this office encourages the City and Mr. Burrell to communicate further to enable the City to provide any requested public records. See G. L. c 66, § lO(a)(i). Mr. Burrell may contact the City to clarify any additional records he is seeking to obtain. The City must use its knowledge of the records to facilitate providing any responsive records.

William Maloney SPR19/1072 Page 3 June 4, 2019 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Chris Burrell