Andrew Quemere v. Framingham, City of - City Clerk (SPR 20221089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2022 SPR22/1089 Paul J. Iverson City Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iverson: I have received the petition of Andrew Quemere appealing the response of the City of Framingham (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Quemere requested various records relating to identified litigation. The City provided a response on May 5, 2022. Unsatisfied with the City’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1089, 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. 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. 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

Paul J. Iverson SPR22/1089 Page 2 May 19, 2022 The City’s May 5th Response On May 5, 2022, the City stated, “the case was handled by outside insurance counsel. For [certain categories of requested records], the City has no responsive documents (we’re not withholding, they are not in our possession, custody, or control)…” Current Appeal In his current appeal, Mr. Quemere stated, “the city has an obligation to maintain its own records and to provide them in response to public records requests. The city must procure the responsive records and provide them in response to my request.” Public Records; Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The City is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the City’s May 5th response, it is unclear whether there is an agency relationship between the City and the insurance counsel. As such, I find the City must provide additional information regarding the relationship between it and the insurance counsel and the scope of any such relationship in order to determine whether the City has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody or control of the custodian of records at the time of the request. Conclusion Accordingly, the City is ordered to provide Mr. Quemere with a response to the 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 this response to this office at pre@sec.state.ma.us.

Paul J. Iverson SPR22/1089 Page 3 May 19, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere