Patrick Higgins v. Fall River, City of - Office of the Corporation Counsel (SPR 20201175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 28, 2020 SPR20/1175 Gary Howayeck, Esq. Assistant Corporate Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Howayeck: I have received the petition of Patrick Higgins 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. Higgins requested “a copy of any and all reports of the transition teams appointed by the Mayor to assist in his transition to the Mayor ship of Fall River.” The City responded on July 14, 2020, stating that it does not possess records responsive to this request. Unsatisfied with this response, Mr. Higgins petitioned this office and this appeal, SPR20/1175, 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

Gary Howayeck, Esq. SPR20/1175 Page 2 July 28, 2020 Current Appeal In its July 14, 2020 response, the City states that “[t]he documents you are seeking were drafted by Mayor-elect Coogan’s transition team. The transition team reports were not created by the City of Fall River or any of its departments. The transition team reports are not within the control of the City of Fall River, and indeed never entered the City’s files or were ever used by the City of Fall River.” No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. 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). Whereas the City has informed Mr. Higgins that it does not have possession, custody, or control of the requested records, I find it has met its burden in responding to this request. Accordingly, I will consider this administrative appeal closed. If Mr. Higgins is not satisfied with the result of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Higgins