Debra Waller v. Newton, City of - City Clerk (SPR 20201711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2020 SPR20/1711 David A. Olson City Clerk City of Newton City Hall 1000 Commonwealth Avenue Newton, MA 02459 Dear Mr. Olson: I have received the petition of Debra Waller appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 16, 2020, Ms. Waller requested the “…3/25/13 ruling by Mr. Lojek on Special Permit 470-04 or state that it is missing from Newton’s records as of my request date of 3/10/20.” Unsatisfied with the response, Ms. Waller appealed, and SPR20/1711 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. The City’s Responses In an email dated May 12, 2020, the City stated “[the City] should have these records … to you by May 12th. If the City … need[s] more time, [the City] would … reach out to you.” 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

David A. Olson SPR20/1711 Page 2 September 29, 2020 Basis of Appeal In her September 16th appeal, Ms. Waller alleges, “… that a false, externally stored, record (03.25.13_Bonaire Circle, 10.pdf) was returned to me as part of Newton’s response. I would like you to investigate if the ‘real’ version of this record, a 3/25/13 enforcement ruling letter from Inspectional Services Commissioner John Lojek titled ‘Board Order 470-04’ was ever saved and maintained by Newton’s Public Records system as required by law. If this record was not saved and maintained, then I will assume that the false version was returned to me to hide the fact that the real version was missing.” Conclusion Based on the appeal petition, I find the basis of Ms. Waller’s appeal is unclear. Ms. Waller is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." See 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Consequently, this office is unable to opine on the appeal at this time. Ms. Waller may wish to clarify this matter and her objections to the City’s response. Ms. Waller is reminded that the Public Records Access Regulations, which govern the procedural aspects of all appeals, require that an appeal to this office be filed within ninety calendar days of the date of the request letter, or within ninety calendar days of the date of a written response from the record custodian. See 950 C.M.R. 32.08(1)(d); 950 C.M.R. 32.08(1)(e). Sincerely, Rebecca S. Murray Supervisor of Records cc: Debra Waller