Paula Sterite v. Everett, City of - Solicitor's Office (SPR 20222190)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 7, 2022 SPR22/2190 Colleen M. Mejia, Esq. City Solicitor City of Everett 484 Broadway, Room 21 Everett, MA 02149 Dear Attorney Mejia: I have received the petition of Paula Sterite appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2022, Ms. Sterite requested the detailed phone records of the City Councilors during the June 27th City Council meeting from 7 PM-11:30 PM. Prior appeal The requested records were the subject of a prior appeal. See SPR22/1874 Determination of the Supervisor (Supervisor) (August 26, 2022). In my August 26th determination, I ordered the City to provide a supplemental response to the request for a specifically identified City Councilor’s possible phone calls that pertain to any City business during the June 27th City Council Meeting. The City provided an August 29th response indicating, “[t]here are no more responsive documents. The City forwarded all response documents [regarding the request for all City Councilors’ phone records]. Ms. Sterite’s comment about [the identified City Councilor] looking at her phone during the meeting was explain[ed] by the [C]ouncilor stating that she was looking at the electronic version of the Council’s agenda.” Unsatisfied with the City’s response, on September 7, 2022, Ms. Sterite petitioned the Supervisor, and the current 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 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

Colleen M. Mejia, Esq. SPR22/2190 Page 2 October 7, 2022 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). 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 While this appeal was pending, the City provided a September 26, 2022 response pertaining to Ms. Sterite’s request. In that response, the City asserts, “Ms. Sterite continued to email your office stating that the [C]ity has not responded, which is not true. This morning Ms. Sterite again contacted your office and requested to, again, appeal this request. The [C]ity has no other response documents to this request.” Please note, that the City provided responsive records pertaining to the June 28th request for the call log records of four of the City Councilors with redactions to these records under Exemption (c) of the Public Records. These redacted records are the subject of a separate appeal. See SPR22/2192. No responsive records Based on the City’s responses on August 29th and September 26th, asserting that neither the identified City Councilor nor the City have any additional records responsive to Ms. Sterite’s June 28th request, I find that the City has met its burden of specificity in responding to the request. Ms. Sterite is advised, 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

Colleen M. Mejia, Esq. SPR22/2190 Page 3 October 7, 2022 Conclusion Accordingly, where the City confirms there are no additional records responsive to Ms. Sterite’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Sterite is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Paula Sterite