Joseph Viglione v. Medford, City of - Law Department (SPR 20213342)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR21/3342 Kimberly M. Scanlon, Esq. City Solicitor Records Access Officer City of Medford City Hall 85 George P. Hassett Drive Medford, MA 02155 Dear Attorney Scanlon: I have received the petition from Joseph Viglione appealing the response from the City of Medford’s Law Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 11, 2021, Mr. Viglione requested records related to oaths of office, police reports, and other City government documents. The Department provided a response on December 23, 2021. Unsatisfied with the response, Mr. Viglione petitioned this office and this appeal, SPR21/3342, 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

Kimberly M. Scanlon, Esq., RAO SPR21/3342 Pg. 2 January 6, 2022 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); -se-e -a-ls-o 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s December 23rd Response On December 23, 2021, the Department provided Mr. Viglione with records and stated, “[a]s a preliminary matter, as [Mr. Viglione] may recall, the duty of the City of Medford to respond to requests for public records extends only to records that are in existence and in its custody, possession, or control and is under no obligation to create records in response to a records request or to answer questions in response to the requests.” In his appeal to this office, Mr. Viglione contends the response was incomplete and explained he is “requesting copies of the documents known as presentment letters. I know they must exist as I have seen numerous lawsuits against the city of Medford on file in Superior court. As there are many residents who would like to see these documents that is of great public interest, it is inappropriate for a city NOT to release such documents.” Records in existence 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). If the Department does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In the Department’s December 23rd response, it stated “[a]fter a comprehensive search, none that are responsive to your request of ‘two documents that show examples of a ‘presentment letter.’ Please note that G.L. c. 258 § 4 governs ‘presentment.’ For your convenience, I have included the pertinent link below.” In light of the issues raised by Mr. Viglione regarding the existence of presentment letter records, I find it is unclear whether further responsive records exist in the Department’s possession. The Department must clarify this matter. This office continues to encourage Mr. Viglione and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably).

Kimberly M. Scanlon, Esq., RAO SPR21/3342 Pg. 2 January 6, 2022 Conclusion Accordingly, the Department is ordered to provide Mr. Viglione with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Joseph Viglione