Steven Fitzgerald v. Everett Housing Authority (SPR 20201288)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2020 SPR20/1288 Stephen Kergo Executive Director Everett Housing Authority 393 Ferry Street Everett, MA 02149 Dear Mr. Kergo: I have received the petition of Steven Fitzgerald appealing the response of the Everett Housing Authority (Authority) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fitzgerald requested: “Any and all reports; documents; logs; memos; disclosures; accounts; diary; script; evidence; instrument; notes; recordings; article; pages; notice; announcement; bulletin; message; conveyance; tapes; affidavit; manifest; notification; invoices or contract pertaining to the basketball net and equipment that was received from [an identified person].” In a July 31, 2020 email response, the Authority informed Mr. Fitzgerald, “…a review of our records shows no records for the criteria you had listed. Further, we have no knowledge of who may have this documentation.” As a result of the Authority’s July 31st response, Mr. Fitzgerald petitioned the Supervisor of Records (Supervisor), 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 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

Stephen Kergo SPR20/1288 Page 2 August 11, 2020 order to withhold a requested record. G. L. c. 66, § 10(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…”); 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). It is my understanding he Authority has indicated that it would provide a further response regarding any records that it may be in possession, custody or control since Mr. Fitzgerald’s request. Conclusion Accordingly, the Authority is ordered to provide Mr. Fitzgerald with this response 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald