Mary-Ellen Manning v. Peabody, City of - City Clerk's Office (SPR 20222583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2583 Brian P. Barrett, Esq. Peabody Law Office One Essex Green Drive Peabody, MA 01960 Dear Attorney Barrett: I have received the petition of Mary Ellen Manning appealing the response of the City of Peabody (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 21, 2022, Ms. Manning requested: [A] list of all accesses and entries as recorded by the electronic door locks to the door of the Peabody Community Development office and Building Commission office by any of [a list of named individuals] for the time period of March 21, 2021 through April 1, 2021,” and “a list of all access and entries as recorded by the electronic door locks to the door of the Peabody Community Development office and Building Commission office by anyone, whether or not named above, on March 26, 2021. The City responded on November 2, 2022, denying the request. Unsatisfied with the City’s response, Ms. Manning 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 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

Brian P. Barrett, Esq. SPR22/2583 Page 2 November 29, 2022 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. Current Appeal In her appeal petition, Ms. Manning contends that she “understand[s] that the accesses and entries to these offices will not be tied to any specific person, but the City should disclose the information even if it is not tied to any one individual. [She is] not seeking the security code, just the dates and times of entries and egresses. Since the City cannot tease out ... whether the named individuals entered the offices, then the City should produce all the entries and accesses as recorded by the electronic door locks to the two offices for the requested time period.” Where Ms. Manning states that she is “not seeking the security code, just the dates and times of entries and egresses,” I find it is unnecessary to address the applicability of the Public Records Law to the security code itself. Accordingly, I will proceed to address the issues relating to Ms. Manning’s request for “a list of all accesses and entries.” The City’s November 3rd Response In its November 3, 2022 response, the City states the following: [T]here are no sign in sheets for access to the Peabody Community Development office and Building Commission office. There are no individual codes issued to an individual person to gain access to the Peabody Community Development office and Building Commission office. The entry door to the Peabody Community Development office and Building Commission office has one code used by all who enter. It does not register who enters. Records in Existence, Superior Knowledge of the Records Please note 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). 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). However, 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).

Brian P. Barrett, Esq. SPR22/2583 Page 3 November 29, 2022 In this case, although the City has made clear that it does not have a list of entries by name, it is unclear if the City is able to provide the list of entries based on dates and times, without the names, as Ms. Manning is seeking. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. Manning with a response to her 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: Mary Ellen Manning