Michael D. O'Farrell v. Fitchburg, City of - City Clerk (SPR 20211994)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2021 SPR21/1994 Mary de Alderete City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. de Alderete: I have received the petition of Michael D. O’Farrell appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2021, Mr. O’Farrell requested: “…a copy of the current salary and compensation report, presumably dated June 30, 2021 or a more recent date to include any salary and compensation changes to coincide with the close of the municipal government fiscal year.” Mr. O’Farrell based his current request on salary and compensation data at the time of the July 25th request. He also based his request on the City’s Ordinance Chapter 44 pertaining to Salaries and Compensation of all officers and employees of the City that are set by ordinance. In addition, Mr. O’Farrell’s July 25th request states, “…records or files, which include School Department employees, exist in electronic format, and are easily ported to a format readable in a Microsoft Windows operating environment.” On July 26, 2021, the City provided Mr. O’Farrell with records responsive to his request for “salary and compensation” of employees subject to the City’s ordinance, Chapter 44, including a link to collective bargaining agreements As a result of the records received, Mr. O’Farrell petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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

Mary de Alderete SPR21/1994 Page 2 August 20, 2021 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) (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 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). Waiver of fees 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. Mr. O’Farrell asks that the City waive all fees. Please be advised, while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. Therefore, it is not within the Supervisor’s enumerated powers to either require or approve such a waiver. Requestor’s August 9th petition In his August 9, 2021 petition, Mr. O’Farrell explained to this office that he sought a salary and compensation report dated June 30, 2021 or a more recent date. Specifically, Mr. O’Farrell seeks a record that reveals, “…the dollar value of salary plus the dollar value of any benefits received in addition to salary resulting from employment. Benefits provided as a result of employment with the [City] include incentive pay; shift differential; paid time-off (vacation days, sick days, holiday pay), [C]ity share of retirement plan contributions; [C]ity share of insurance (medical, dental, disability, life), tuition or educational assistance, and health and wellness programs or memberships. Such information was not included with response and this information, required by the City Code to be on file with the City Clerk…must be provided [the] Requestor.” It is unclear whether the City has additional records responsive to this request. The City must clarify this issue. Conclusion Accordingly, the City is ordered to provide Mr. O’Farrell 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.

Mary de Alderete SPR21/1994 Page 3 August 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael D. O’Farrell