Michael D. O'Farrell v. Fitchburg, City of - Board of Health (SPR 20192520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth . Public Records Division Rebecca S. Murray Supervisor of Records January 8, 2020 SPR19/2520 Stephen D. Curry Director of Public Health City of Fitchburg 166 Boulder Drive-Suite 108 Fitchburg, MA 01420 Dear Mr. Cuny: I have received the petition of Michael O'Fanell appealing the response of the City of Fitchburg Office of the Board of Health (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 3, 2019, Mr. O'Farrell requested various records, including "[c ]opies of any and all corrective or disciplinary action resulting form Ms. Ogilvie's activities (and failure to respond) on May 23 and May 24." In an email dated September 16, 2019, the Office provided Mr. O'Farrell a response. Unsatisfied with the Office's response, Mr. O'Farrell petitioned this office and as a result SPR19/2520 was opened. Tlte 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, regai·dless 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, § IO(b)(iv); 950 C.M.R. 32.06(3); 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. Curtent Appeal In his appeal, Mr. O'Farrell indicates the Office's response "unreasonably denied a portion of requested information, specifically the information requested with regard to any 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

Stephen D. Curry SPR19/2520 Page2 January 8, 2020 disciplinary and/or corrective action taken by Mr. Curry with his subordinate employee, Lois Ogilvie." Subsequent to the intervention by a member of the Public Records Division, I learned that the Office does not possess any records responsive to Mr. O'Farrell's request. On January 8, 2020, the Office confirmed they did not possess any records in an email sent to this office and Mr. O'Farrell. No Duty to Create Records Please be advised, under the Public Records Law the Office is not required to create a record in response to a public records request. See G. L. c. 66, §6A( d). 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Concli1sion Whereas the Office does not possess records responsive to Mr. O'Farrell's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. · Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael O'Farrell