Patrick Higgins v. Fall River, City of - Office of the City Clerk (SPR 20211410)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1410 Alison Bouchard City Clerk City of Fall River One Government Center, Room 227 Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Patrick Higgins appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Higgins requested: all emails sent from or received at an identified email address between April 23, 2021 and May 22, 2021. In a June 3, 2021 response, the City denied Mr. Higgins’ request in its entirety. Unsatisfied with the City’s response, Mr. Higgins petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Mr. Higgins clarifies in his petition, “…this is an appeal of the denial of the request for private emails used by the [C]ity [C]ouncilor for [C]ity- related business.” The City’s June 3, 2021 response In its June 3rd response, the City’s Assistant Corporation Counsel, Seth Thomas Aitken, asserts, “[t]he records you are seeking exist outside of the executive branch and are not included in M.G.L. Ch. 4, § 7(twenty-sixth). Accordingly, said records are not subject to a request under M.G.L. Ch. 66, § 10.” “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). All public officials and employees, whether hired, appointed or elected, have a duty to comply with the tenets of the Public Records Law and its Access Regulations. In this instance, a City Councilor may be using a personal email address to send and receive emails dealing with the City’s business. If that is the case, any emails received or sent by 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

Alison Bouchard SPR21/1410 Page 2 June 17, 2021 any City Councilor, employee or official that pertains to the City’s business is a public record subject to redaction under the exemptions in the Public Records Law. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). 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). Based on the City’s June 3rd response, it is unclear if the emails dealing with City business exist and have been retained. Please be advised, the City must institute safeguards to ensure that all records dealing with the City’s business are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. The City should review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Burden of specificity in responding The City denied Mr. Higgins’ request in its entirety without claiming any exemption(s) in the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police - - - - Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City did not meet its burden of demonstrating how the responsive email records pertaining to the City’s business, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Accordingly, I find that the City did not meet its burden in responding to this public records request. Conclusion Accordingly, the City is ordered to provide Mr. Higgins with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Patrick Higgins