Heritier Kampew v. Westfield, City of - Office of the City Solicitor (SPR 20191411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 29, 2019 SPR19/1411 Robyn Gay City of Westfield 59 Court Street, Room 320 Westfield, MA 01085 Dear Ms. Gay: I have received the petition of Heritier Kampew appealing the response of the City of Westfield (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kampew requested "sworn oaths" and "surety bond[s]" for three identified individuals. The City responded to his request by providing redacted responsive records and indicating it does not possess records responsive to his request for surety bonds. 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, § 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 stat~ 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Robyn Gay SPR19/1411 Page 2 July 29, 2019 Appeal In its May 30, 2019 response, the City indicates that it is" ... not in possession of any documents with regard to Surety Bonds as the City of Westfield is self-insured." In his petition for appeal, Mr. Kam pew asse1is that "[a ] ccording to section 109 A general law in the state of Massachusetts Every officer or employee of a city, town or district required to finish a fidelity bond with a surety or sureties shall furnish a bind with a surety company authorized to transact business in the commonwealth, as surety." Mr. Kampew further asse1is that "[i]f these law enforcements don't have surety bonds that mean these law enforcements are violating the state laws section 109 A and Federal acts of 1792, which written guarantee that requires person to obtain a surety bond to qualify for office." Following a telephone conversation between a Public Records Division staff member and a representative of the City, I learned the City confirmed it does not possess records responsive to Mr. Kampew's request for "surety bonds" related to law enforcement officials, because the City is self-insured. 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 and the City has confirmed it does not possess responsive records. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control df the agency"). As such, whereas the City has confirmed it does not possess responsive records, I find it has met its burden in responding to this request. Conclusion Accordingly, this administrative appeal is now closed. If Mr. Kampew 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: Heritier Kampew