Gary Nolan v. Methuen, City of (SPR 20200652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 28, 2020 SPR20/0652 John J. Wilson, Esq. City Clerk City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Wilson: I have received the petition of Attorney Gary Nolan appealing the response of the City of Methuen (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 2, 2020, Attorney Nolan requested “copies of documents and information regarding all Internal Affairs reports and all discipline investigation reports… the NEPBA is not seeking personnel documents, but it’s request is limited to the Internal affairs reports and findings” relating to a certain Police Officer. The City responded on April 9, 2020 indicating that responses to public records requests are on hold due to the unexpected closure of City Hall due to COVID-19. Unsatisfied with the response, Attorney Nolan appealed and this appeal, SPR20/0652, 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. 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

John J. Wilson, Esq. SPR20/0652 Page 2 April 28, 2020 The City’s April 9th Response In its April 9th response, the City states that “[d]ue to the COVID-19 global pandemic, the Governor of the Commonwealth declared a State of Emergency on March 10, 2020 and Methuen Mayor Perry declared a State of Emergency on March 20, 2020. In keeping with the directives of the States of Emergency, Methuen City offices are closed to the public for the time being. It has not yet been determined when offices will reopen. In accordance with M.G.L. Chapter 66, Section 10, municipalities have ten (10) business days in which they must respond to a public records request. Pursuant to 950 CMR 32.02, ‘’business day’ is defined as Monday through Friday. Business day does not include Saturdays, Sundays, legal holidays, or other weekdays where a custodian's office is closed unexpectedly.’ As such, the business day clock in Methuen legally stopped on March 20, 2020 and will not begin again until such time as the COVID-19 States of Emergency are lifted and City Hall is re-opened to the public. For this reason, all new and pending public records requests are on hold until that time.” Based on a conversation with the City and a staff member of the Public Records Division, it is my understanding that the City intends on providing a response to Attorney Nolan to address the concerns raised in his appeal. Order Accordingly, the City is ordered to provide Attorney Nolan with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations as soon as practicable. 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. Attorney Nolan may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Gary Nolan