Debra Waller v. Newton, City of - City Clerk (SPR 20202333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2333 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.” Previous appeal This request was the subject of a previous appeal. See SPR20/1711 Determination of the Supervisor of Records (October 22, 2020).Unsatisfied with the City's subsequent response, Ms. Waller appealed and SPR20/2333 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. 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 SPR20/2333 Page 2 December 3, 2020 The City’s Responses In its response, the City stated, “[o]n June 16, 2020, you specifically requested the “3/25/12 ruling by Mr. Lojek on Special Permit 470-04.” At the time of your request the City possessed a copy of that document within its custody and control and, in accordance with the City’s obligations under the public records law, a copy of the document was produced to you on June 29, 2020. No further explanation is necessary.” 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.” As the City has provided the requested document within its custody and control responsive to Ms. Waller’s request, which the City confirmed in a telephone conference between a staff attorney and a city representative, I will now consider this administrative appeal closed. If Ms. Waller is unsatisfied with this result, Ms. Waller is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Debra Waller