Stevan Johnson v. Somerville, City of - City Clerk (SPR 20192225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor ofR ecords November 6, 2019 SPR19/2225 David Shapiro, Esq. City of Somerville City Hall 93 Highland A venue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Stevan Johnson appealing the nonresponse of the City of Somerville (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Johnson requested a copy of records pertaining to by-laws and/or ordinances relating to hackney carriages. As a result of the nonresponse, Mr. Johnson petitioned this office and this appeal was opened. 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, § 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 exempthm, 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 generated a response to Mr. Johnson's request on November 4, 2019 that informed him that the City has "been unable to locate any record(s) of newspaper publication of 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

David Shapiro SPR19/2225 Page 2 November 6, 2019 any ordinances, rules or orders in response to your request." Further, the city confirmed "that the Police Department has no such record(s)." 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. 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 c. custodian ofrecords at the time of the request. See G. L. 66, § IO(a)(ii). Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records· cc: Stevan Johnson