Edward P. Sinni, Jr. v. Concord, Town of - Town Clerk (SPR 20201612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 23, 2020 SPR20/1612 Walter Latta Jr., EFO Assistant Fire Chief Concord Fire Department 209 Walden Street Concord, MA 01742 Dear Chief Latta Jr.: I have received the petition of Edward Sinni appealing the response of the Concord Fire Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 5, 2020, Mr. Sinni requested “. . . all documentation including but not limited to notes, emails and/or any other communication methods (phone notes between you and the Fire Chief in Concord or any other public employee or videos of your test for example etc) detailing why you chose not to put into a record the difficulty you had in releasing my fire escape as well as ignoring that the fire escape violated its approved variance. . . . Additionally, I request any records containing these details should they exist. Finally, include any similar records from/created by the two (2) individuals accompanying you to and who witnessed your examination of my fire escape in December 2019 as well as their names and ranks.” Previous appeal The requested records were the subject of a previous appeal. See SRP20/1451 Determination of the Supervisor of Records (September 3, 2020). In my September 3rd determination, I ordered the Department to provided Mr. Sinni with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations. Subsequently, the Department provided a response on September 8, 2020. Unsatisfied with the Department’s response, Mr. Sinni petitioned this office and this appeal, SPR20/1612, 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 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

Chief Walter Latta Jr., SPR20/1612 Page 2 September 23, 2020 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In its September 8, 2020 response, the Department asserts that “. . . there are no new records on this matter.” In his appeal petition, Mr. Sinni states the following: [The Department] has indicated erroneously that there are “no new records” regarding this matter. . . . At the site of the meeting last December Walter Latta indicated that he would write a summary including the names of the two other firemen that accompanied him to my home. I do not have that document with their names. Therefore, there is other documentation. I therefore appeal his replay [sic]. He may, if he chooses, provide the names and ranks of those two accompanying firemen without documentation. There has to be a record of their attendance. He also had one of the firemen video the fire escape and his operation of it. That has not been provided. There may be more. Based on Mr. Sinni’s claims it is unclear if the Department possesses additional records responsive to his 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). To the extent that additional records exist, they must be provided in a manner consistent with the Public Records Law. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. Sinni with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this

Chief Walter Latta Jr., SPR20/1612 Page 3 September 23, 2020 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: Edward Sinni