Paul DeMeo v. Gardner, City of (SPR 20191765)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September .12, 2019 SPR19/1765 Mark P. Hawke Mayor City of Gardner 95 Pleasant Street, Room 125 Gardner, MA 01440 Dear Mayor Hawke: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. DeMeo contacted the City asking "who is the official person ... " that runs the City's Facebook page. Previous appeal This request was subject of a previous appeal. See SPRl 9/1618 Determination of the Supervisor of Records (August 26, 2019.) In my August 26th determination I ordered the City to provide a supplemental written response to Mr. DeMeo in a manner consistent with the Public Records Law and its Regulations. The City provided written responses to Mr. DeMeo on August 28th and 29th in which it maintains its position that it is not in possession of responsive records. Mr. DeMeo subsequently appealed and this administrative appeal, SPRl 9/1765, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govemmental 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 fonn 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); 950 C.M.R. 32.06(3); see also Dist. 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 ·

Mayor Hawke SPR19/1765 Page2 September 12, 2019 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 The City initially respo_nded on August 8, 2019 infom1ing Mr. DeMeo that it has "no public records" relative to the request. In my August 26th detennination I found it was unclear whether an exhaustive search was perfonned, nor was it clear if the requested records existed. In its August 28th response the City asserted "[t]here are no records that meet your request." In its August 29th response the City indicates that" ... we have scoured the employee job descriptions as well as searched electronically for any record that dictates administration of a Facebook page. We have tried to imagine what type of record may exist that we would be able to give you." Existence of additional responsive records In his cunent appeal petition Mr. DeMeo indicates "[t]his is [an] appeal to compel him to provide as to who in the City of Gardner manages the City Facebook Page as linked with the City of Gardner Website." Although it appears Mr. DeMeo seeks the name of an individual, it remains unclear what specific record he seeks other than the job descriptions and "any record that dictates administration of a Facebook page" described in the City's August 29th response. 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. See G. L. c. 66, § 1O (a)(ii). In addition, a public employee is not required to answer questions, or do research, or create documei1ts in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). In light of the City's previous responses, I find the City has met its burden in responding to this request at this time. See G. L. c. 66, § lO(a)(ii), (b)(ii). Mr. DeMeo may wish to clarify with more specificity which additional records he seeks. See G. L. c. 66, § lO(a)(i) (the request must reasonably describe the public record sought); see also G. L. c. 66, § 1O (b )(vii). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Paul DeMeo