Olufunmilola Shelly v. Framingham, City of - City Clerk (SPR 20222097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2022 SPR22/2097 Paul J. Iverson Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iverson: I have received the petition of Olufunmilola Shelly appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 5, 2022, Ms. Shelly requested “…any documentation that exists showing the water/sewer customers who have faulty or miss-calibrated water meters. Seeking [information] on the addresses and how much is owed, or how much over the years the water quantity was off. Seeking any document that exists that may give this information.” On September 12, 2022, the City responded that there are no records responsive to the request. As a result, on September 13, 2022, Ms. Shelly 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 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) (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). 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 SPR22/2097 Page 2 September 27, 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); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In the September 13th petition, Ms. Shelly asserts: Records exist, we have a page of a document that exists and shows the information requested. To show how serious we are – here are some addresses that have miss-calibrated meters and are listed in a document that the [C]ity has in its possession. . . – we won’t name off all the addresses we have – but this should suffice to providing that such a document exists. Based upon Ms. Shelly’s assertion regarding records or information that may be in the possession, custody and control of the City, it is unclear whether the City possesses records responsive to the request. 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). 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). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Ms. Shelly with a response to the request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Ms. Olufunmilola Shelly