Jeff Brown v. Gloucester, City of - Legal Department (SPR 20202265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2265 Charles Payson, Esq. City of Gloucester City Hall Nine Dale Avenue Gloucester, MA 01930 Dear Attorney Payson: I have received the petition of Jeff Brown appealing the response of the City of Gloucester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 18, 2020, Mr. Brown requested “. . . a copy of an email that former Gloucester Historical Commission co-chair . . . received from [an identified Councilor] regarding grants. . . .” The City provided a response on October 1, 2020. Unsatisfied with the City’s response, Mr. Brown petitioned this office and this appeal, SPR20/2265, 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. 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. 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

Charles Payson, Esq. SPR20/2265 Page 2 December 3, 2020 The City’s October 1st response In its October 1, 2020 response, the City states “[a]fter a diligent search conducted by the City’s IT Department [and the 2 identified individuals], the email you are seeking cannot be located. Please note that any deleted emails would still be recoverable by the City’s IT Department.” Based on the City’s response, indicating the responsive record could not be located, I find the City must explain whether the responsive record existed and was destroyed, or whether the record did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the City is ordered to provide Mr. Brown 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 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: Jeff Brown