David Zuares v. Lowell, City of - City Solicitor (SPR 20220193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2022 SPR22/0193 John Pyers Records Access Officer City of Lowell City Hall Law Department 375 Merrimack Street, 3rd Floor Lowell, MA 01852 Dear Mr. Pyers: I have received the petition of Attorney David Zuares appealing the response of the City of Lowell (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 28, 2021, Attorney Zuares requested “copies of any and all documents arising out of any police activity involving [a named individual] and [a specified address] including but not limited to all activities that occurred on September 23, 2021.” Subsequently, Attorney Zuares reiterated his request to the City in a letter on December 2, 2021. Claiming not to have received a written response, Attorney Zuares appealed, and this case 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 agency or municipality 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. Att’y 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. If there are any fees associated with a response, a written good faith estimate must be 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

John Pyers SPR22/0193 Page 2 February 8, 2022 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. Current Appeal In his appeal petition, Attorney Zuares indicates that while he has received voicemails from a representative of the City, he has received no written response to his request. Specifically, he explains the following: On October 28, 2021, a City of Lowell representative left a voicemail for [Attorney Zuares] stating that the matter was being handled by the Middlesex County District Attorney’s office and referring [Attorney Zuares] to said office. . . . On December 16, 2021, [Attorney Zuares] received a second voicemail from the same City of Lowell representative instructing him that the matter was being handled by the Middlesex County District Attorney’s office and directing him to contact that office. Possession, Custody, or Control Please be advised that 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). Further, under the Public Records Law and the Access Regulations (Regulations) all written requests for public records must be met with a written response within 10 business days of receipt of the request. G. L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § l0(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of a response. Conclusion Accordingly, the City is ordered to provide Attorney Zuares with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Zuares, Esq.