Bruce C. Forcier v. South Hadley, Town of - Fire District (SPR 20221997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/1997 Terie B. Fleury Clerk/Treasurer South Hadley Fire District No. 1 144 Newton Street South Hadley, MA 01075 Dear Ms. Fleury: I have received the petition of Bruce C. Forcier appealing the response of the South Hadley Fire District No. 1 (District) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 22, 2022, Mr. Forcier requested “public records dealing with any or all South Hadley Water Department, District 1 issued cell phones,” specifically, “seeking records of all call and text logs, as well as, any digital images or jpeg files over the last 5 years.” The District responded on August 29, 2022, providing responsive records. Unsatisfied with the District’s response, Mr. Forcier 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 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a 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

Terie B. Fleury SPR22/1997 Page 2 September 13, 2022 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Forcier contends that his “request clearly asks for 5 years worth of data, they are supplying date only going back 5 months on a new contract.” Additionally, he argues that the District has “also indicated that the phone has no text or digital images on any phone going back 5 years. Based on information they provided, on the 2/10/18 statement it list 298 picture or video messages on [a specified] phone number.” The District’s August 29th Response In its August 29, 2022 response, the District provides responsive records from a “cell account that the Water Department opened in May 2022,” and states that “there are no text or images to pass along.” Possession, Custody, or Control of Records The District is 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, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, where Mr. Forcier requested records covering five years, it is unclear whether the District possesses additional records responsive to his request. Further, based on the information provided in Mr. Forcier’s appeal petition, it is unclear whether the District possesses responsive text logs and digital image data. The District must clarify these matters. Conclusion Accordingly, the District is ordered to provide Mr. Forcier 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, Manza Arthur Supervisor of Records cc: Bruce C. Forcier