Alexander Silva v. Fall River, City of - Office of the City Clerk (SPR 20200868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2020 SPR20/0868 Alison M. Bouchard City of Fall River, Office of the City Clerk One Government Center, Room 227 Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Alexander Silva 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. Silva submitted a request for a copy of the “purchase and sale agreement between the City of Fall River and [the] T.A. Restaurant.” Previous Appeal This request was the subject of a previous appeal. See SPR20/0463 Determination of the Supervisor of Records (March 17, 2020). In my March 17th determination, I found the City intended on providing a supplemental response. The City was ordered to provide Mr. Silva with a response made in accordance with the Public Records Law, its Access Regulations and the order within ten business days. The City responded indicating they could not locate the purchase and sale agreement. Unsatisfied with the City’s response, Mr. Silva petitioned this office and SPR20/0868 was opened as a result. Current Appeal In his appeal, Mr. Silva states “I understand that city officials can't locate the document, but given that it's the only item missing from the building packet and other sales of similar properties at that same time still have their documents, I'm hoping the city can locate the missing purchase and sale agreement -- either through the closing attorney or by some other means.” Mr. Silva further states “The Preservation Society of Fall River has requested the city withhold any demolition permit for the N.B. Borden School until the missing purchase and sale agreement for the property can be located, so the conditions of sale can be verified.” 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

Alison M. Bouchard SPR20/0868 Page 2 June 15, 2020 Records in existence 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). In light of the issues raised in Mr. Silva’s appeal regarding the existence of responsive records, I find it is unclear whether responsive records exist, and if they do, why they have not been provided. The City must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). If such records were destroyed, the City must demonstrate whether it followed proper records retention protocol. Please note, the City must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the City to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Order Accordingly, the City is ordered to provide Mr. Silva with a response made in accordance with the Public Records Law, its Access Regulations and this order as soon as practicable. It is preferable to send an electronic copy of each response to this to this office at pre@sec.state.ma.us. Mr. Silva may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Alexander Silva