Brian Petrini-Smith v. Framingham, City of - City Clerk (SPR 20222159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2022 SPR22/2159 Paul J. Iversen City Clerk City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iversen: I have received the petition of Brian Petrini-Smith 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). On July 19, 2022, Mr. Petrini-Smith requested “… all plans for apartment buildings or mixed use buildings over 50 residential units received by the city since March 2022 [and] all proposals or applications for Marijuana related businesses submitted since March 2022.” The City responded on August 23, 2022 by sending a total of seven documents. Claiming that additional responsive records exist, Mr. Petrini-Smith petitioned this office, and this appeal, SPR22/2159, 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. 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

Paul J. Iversen SPR22/2159 Page 2 September 26, 2022 The City’s August 23rd Response In its August 23, 2022 response, the City sent a total of seven documents to Mr. Petrini- Smith. Current Appeal In his appeal petition, Mr. Petrini-Smith contends “[t]he city failed to turn over the responsive documents that [he] know[s] exist, because a city employee provided [him] with documentation of a plan the city has in its possession …” 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). In light of the issues raised in Mr. Petrini-Smith’s appeal regarding the existence of additional responsive records, I find it is unclear whether any such responsive records exist. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Petrini-Smith 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Brian Petrini-Smith