Michael D. O'Farrell v. Fitchburg, City of - City Clerk (SPR 20191684)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

August 30, 2019 SPR19/1684

Gary Bevilaqua

Assistant City Engineer

City of Fitchburg

166 Boulder Drive, Suite 108 Fitchburg, MA’ 01420

Dear Mr. Bevilaqua:

I have received the petition of Michael O’Farrell appealing the nonresponse of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.LR. 32.08(1). Specifically, Mr. O’Farrell requested records regarding the plan and profile of a specifically identified property. Having received no response, he petitioned this office.

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, § 10A(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, § 10(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.

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(vili); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G.

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

Gary Bevilaqua SPR19/1684 Page 2 August 30, 2019

L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records - custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response.

Order

Despite being notified of the opening of this appeal, no response has been provided. Accordingly, the City is hereby ordered to provide Mr. O’Farrell with a response to the request, provided in a manner consistent with this order, the Public Records Law and its 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.

Rilrvca Munay—

Rebecca S. Murray Supervisor of Records

Sincerely,

cc: Michael O’Farrell