Michael D. O'Farrell v. Fitchburg, City of (SPR 20191941)

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

Rebecca S. Murray Supervisor of Records

October 4, 2019 SPR19/1941 Michele Marino

Veterans’ Commissioner

City of Fitchburg

14 Wallace Avenue

Fitchburg, MA 01420

Dear Ms. Marino,

I have received the petition of Michael O’Farrell appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 10(A); see also 950 C.MLR. 32.08(1). Specifically, Mr. O’Farrell requested “any and all documents and related correspondence including any and all replies and responses received by your office and/or any office of the City of Fitchburg and/or any unit, section of the department of Veterans’ Services relying on M.G.L. c. 66.”

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.

Previous Appeal

This appeal is the subject of a previous case. See SPR19/1821 (September 18, 2019). I closed SPR19/1821 with the understanding that the City provided Mr. O’Farrell a response dated

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

Michele Marino SPR19/1914 Page 2 October 4, 2019

September 13, 2019.Unsatisfied with this response, Mr. O’Farrell appealed to this office and as a result SPR19/1941 was opened.

Current Appeal

In a follow up letter to this office dated September 19, 2019 you state, “Mr. O’Farrell has received ALL documents pertaining to the FOIA request as to this date. Mr. O’Farrell states;

1. Rather curiously, Pusateri’s MPRL response consists of three (3) copies of the same documents and nothing more.

RESPONSE; The documents are not all the same. One is the original request, one is the NOTIFICATION OF RECEIPT, and one is REPLY TO INQUIRY. The REPLY TO INQUIRY states that the request was forwarded to the USPS Headquarters. I have yet to receive a response from the USPS. Therefore, Mr. O’Farrell is in possession of ANY and ALL documents pertaining to the FOIA request.”

In response Mr. O’ Farrell states, “attachment Pages 2-3-4-5 are duplicated by Attachment Pages 6-7-8, which are in turn duplicated by Attachment Pages 10-11-12-13. _ Nothing provided by Solicitor Pusateri is fully responsive to the content of the MPRL request.”

Please be advised, 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, § 10(a)(ii).

Although the City states, “Mr. O’Farrell is in possession of ANY and ALL documents pertaining to the FOIA request,” based on Mr. O’Farrell’s appeal, it is unclear if the City possesses any other records responsive to his request.

Conclusion

This office encourages Mr. O’Farrell and the City to communicate further to enable the City to provide the requested public records. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public record sought). 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, § 10(a)(ii).

If unresolved issues remain, Mr. O’Farrell may appeal the substantive nature of the City's response within ninety days. See 950 C.MLR. 32.08(1).

Michele Marino ~ SPR19/1914 Page 3 October 4, 2019

Sincerely,

Rebecca S. ca Munna

Supervisor of Records

cc: Michael O’ Farrell