Antonio Branco v. Fall River, City of - Fire Department (SPR 20200132)

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

Rebecca S. Murray Supervisor of Records

January 31, 2020 SPR20/0132

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 response 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 records pertaining to EMS responses to a particular address within the City. As a result of the response, Mr. Branco 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, § 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.

Prior Appeal & Reconsideration

This request was the subject of prior appeal. See SPR19/2195 Determination of the Supervisor of Records (October 31, 2019 & December 19, 2019). In my October 31* determination, after the City confirmed they had no responsive records, I indicated that the City is not required to create a list of records or any record in response to a public records request.

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832 Fax: =I) 727-5914 ; sec.state.ma.us/pre * pre@sec.state.ma.us

Tim Oliveira | SPR20/0132 Page 2 January 31, 2020

Shortly thereafter on January 6, 2020, the City located responsive records and sent them to Mr. Branco.

Current appeal

Subsequent to an intervention by a staff member of the Public Records Division, I learned that in an email dated January 27, 2019, the City confirmed it does “not have any other records on the dates requested or the address that Mr. Branco requested.” 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). Accordingly, I will consider this appeal closed.

ZO boara

Felucea S. Murray C

Supervisor of Records

ce: Antonio Branco