Steven Fitzgerald v. Everett Housing Authority (SPR 20202268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2268 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, on October 22, 2020, Mr. Fitzgerald requested the: “Certificates of Receipt of Open Meeting Law material regarding Chairman Domenic Puleo, Robert Norton, Legal Counsel Francis J. LaRovere III, Executive Director Stephen Kergo, Administrative Assistant Nicole DiPierro, Assistant Director Roberta Correale, Philip Colameta and John Barrett, pursuant to G. L. c. 30A, § 20(h) and 940 C.M.R. 20.04.” Previous appeal This request was the subject of previous appeal. See SPR20/2131 Determination of the Supervisor of Records (November 17, 2020). Unsatisfied with the Authority’s response, Mr. Fitzgerald appealed and SPR20/2268 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(d)(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 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 SPR20/2268 Page 2 December 3, 2020 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). The Authority’s November 18, 2020 Response In its November 18th response, the Authority stated that it produced responsive records. Basis of Appeal In his appeal, Mr. Fitzgerald states, “[t]his is an appeal of a denial of public records based on Mr. Kergo creating records in satisfying the request and refusing to produce what was in his possession if any.” Conclusion Based on the appeal petition, I find the basis of Mr. Fitzgerald’s appeal is unclear. The Authority produced responsive records. Mr. Fitzgerald 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. Mr. Fitzgerald may wish to clarify this matter and his objections to the Authority’s response. Sincerely, Rebecca S. Murray Supervisor of Public Records cc: Steven Fitzgerald