Diego Ibarguen, Esq. v. Worcester, City of - Office of the City Manager (SPR 20191225)

The Co1nmonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 1, 2019 SPR19/1225 Joshua Martunas City of Worcester 455 Main Street - Room 30 I Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Diego Ibarguen, Esq. on behalf of WCVB appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Kathy Curran of WCVB requested "all logs and/or repm1s of a 911 call and EMS response from the Worcester Recovery Center and Hospital that came into the communications center and was dispatched to Worcester EMS on March 11, 2019." Ms. Curran included various categories of information that should be included with the records. The City responded on May 23, 2019 by providing certain records and indicating it does not possess others. Tlte 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, § 1O (b )(iv) (written response must "identify any records, categories of records or portions ofrecords that the agency or municipality intends 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). Appeal In its May 23rd response the City provided certain responsive records. You also explained 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

Joshua Martunas SPRI9/1225 Page 2 Julyl,2019 "[t]he City does not dispatch ambulances, only Police and Fire emergency vehicles. Therefore, the [C]ity does not possess any responsive documents for the remainder of your request." On May 28t1\ Jon Wells of WCVB submitted a request to the UMass Memorial Medical Center (UMass/UMass Memorial) for the records. UMass Memorial responded on May 29th by referring to a 2002 determination from the Supervisor of Records regarding its status under the Public Records Law. In the appeal petition dated June 14, 2019 Attorney Ibarguen indicates" ... WCVB affirms here that its request to UMass in this matter was made solely in UMass' capacity as a private contractor providing essential government services-specifically, the administration of emergency medical response and transportation-to the taxpayers of Worcester. For this reason, WCVB respectfully argues that UMass' reliance on your office's conclusion that it is not a public entity for the purposes of a Public Records Act request is irrelevant." Attorney Ibarguen asserts "[r]ather, UMass is, for the purposes of this [r]equest, a private entity providing taxpayer funded essential services of the government of Worcester. Worcester's decision to contract out these essential government services does not convert the records relevant to the provision of such services into private records; to the contrary, they are public records to which Worcester would have access, had it responded properly to WCVB's [r]equest by either collecting them from UMass or directing UMass, as Worcester's agent, to release them to WCVB." He argues that this " ... third party contractor relationship does not insulate Worcester from its obligations to make responsive records available, whether held by Worcester directly or held by Worcester's third patiy contractors in the course of providing taxpayer-funded services on behalf of Worcester." I understand that the City provided a supplemental response to Mr. Wells on June 19, 2019. In this response the City indicates "[p]lease be advised that the city does not provide or pay for ambulance services; these are private services, not municipal services and they are not publicly funded. The [C]ity will not obtain any records from UMass Memorial, and is under no obligation to do so. The [C]ity is not withholding any responsive records from disclosure. Your view is erroneous and based upon your misunderstanding of the facts." Despite this position, the City provided certain responsive information and you indicate the City conducted research" ... to verify that this information is associated with the incident about which you inquired, because we assumed you were interested in receiving accurate information." I find that in light of the City's June 19th supplemental response which provides additional responsive information, as well further arguments regarding its legal position, I will consider this administrative appeal closed. Attorney Ibarguen may appeal the substantive nature of the City's June 19th response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Diego lbarguen, Esq.