Quan Doe v. Worcester, City of - Law Department (SPR 20211000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/1000 Michael Vigneux Records Access Officer City of Worcester Law Department 455 Main Street, Room 303 Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Quan Doe appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On April 16, 2021, Mr. Doe requested “. . . names and titles, the personnel files, commissions, surety bonds/insurance, arrest records, FARA disclosures and any possible membership/ corporate conflicting interests in organizations/ businesses for [identified] parties.” On April 16, 2021, the City responded. Unsatisfied with the response, Mr. Doe appealed and SPR21/1000 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. Current Appeal In its April 16th response, the City stated that it “. . . has reviewed its files and has 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

Michael Vigneux SPR21/1000 Page 2 May 4, 2021 determined there are no responsive documents to your request. [The identified parties] are not employees of the City of Worcester and therefore the City is not in possession of any responsive records to this request.” In an email correspondence on April 20, 2021, Mr. Doe states “[t]hese documents are public records and we are entitled to[] this within a reasonable amount of time which once again over five months has pass. We demand our Public records request be fully comply with. . . .” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the City states that it does not possess records responsive to this request, it is unclear what the basis of Mr. Doe’s appeal is. Mr. Doe is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Conclusion Accordingly, Mr. Doe must describe his specific objections to the City’s April 16th response. Sincerely, Rebecca S. Murray Supervisor of Records cc: Quan Doe