Michael D. O'Farrell v. Fitchburg, City of - City Clerk (SPR 20200030)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 21, 2020 SPR20/0030 Mary de Alderete City of Fitchburg, City Clerk 166 Boulder Drive, Suite 108 Fitchburg, MA O1 420 Dear Ms. de Alderete: I have received the petition of Michael O'Fan-ell appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. O'Farrell requested a copy ofrecords obtained by the City through a Freedom of Information Act (FIOA) request to the United States Postal Service (USPS) relating to his personnel file. 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, § IOA(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 exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current appeal In a September 13, 2019 response, the City provided records responsive to the request and indicated it does not consider all of the records public. The City then cited Exemptions ( c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). 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

Mary de Alderete SPR20/0030 Page 2 January 21, 2020 In a January 7, 2020 communication with this office, Mr. O'Farrell contends that there should be additional records in the possession of the City responsive to his request. Subsequent to an intervention by a staff member of the Public Records Division, the City confirmed that it does not have any additional responsive records. Further, the City asse1ied that "the Department of Veteran Services ... confirmed to [the City] that the FOIA Request did not yield any results." 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 atthe time of the request. See G. L. c. 66, § 1O (a)(ii). However, in light of the City's September 13th response, in which it asserts that not all of the responsive records are public, it is unclear whether it is withholding any requested records. This City must clarify this matter. Burden ofs pecificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. G. L. c.66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the City is ordered to provide Mr. O'Farrell with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael O'Farrell