Antonio Branco v. Fall River, City of - Fire Department (SPR 20192195)

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

Rebecca S, Murray Supervisor of Records

October 31, 2019 SPR19/2195

Tim Oliveira

City of Fall River, Fire Department 140 Commerce Drive

Fall River, MA 02720

Dear Mr. Oliveira:

I have received the petition of Antonio Branco appealing the responses of the City of Fall River (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Branco requested a copy of all emergency medial responses to a certain address.

Unsatisfied with.the responses he had received from the City, Mr. Branco petitioned this office and this appeal was opened as a result.

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.

Current appeal

- Subsequent to an intervention by a staff member of the Public Records Division, I learned that the City confirmed its August 19, 2019 response that asserted “we have had no

~ 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

Antonio Branco SPR19/2195 Page 2° October 31, 2019

emergency medial responses to the address in question...” Under the Public Records Law, the City is not required to create a list of records or any record in response to a public records request. Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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).

Sincerely,

Kubeoea Wumay

Rebecca S. Murray Supervisor of Records

cc: Antonio Branco