Joseph Viglione v. Medford, City of (SPR 20230005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 13, 2023 SPR23/0005 Adam L. Hurtubise City Clerk City of Medford 85 George P. Hassett Drive Medford, MA 02155 Dear Mr. Hurtubise: I have received the petition of Joseph Viglione appealing the response of the City of Medford (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 12, 2022, Mr. Viglione requested: 1. [T]he document that provides for the monies received by [a named individual] for his recent fundraiser at Salvatore’s Restaurant in his effort to run for mayor 2. [A named individual]’s Tax Returns for the years 2017, 2018, 2019, 2020, 2021[.] The City provided a response on January 3, 2023. Unsatisfied with the response, Mr. Viglione petitioned this office and this appeal, SPR23/0005, 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, § l0A(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 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

Adam L. Hurtubise SPR23/0005 Page 2 January 13, 2023 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. The City’s January 3rd Response In its January 3, 2023 response, the City stated, “[f]ollowing such diligent search, please be advised that the City does not have any records responsive to this request…” Current appeal In his appeal, Mr. Viglione states, “…[t]he documents are public documents and I would like to publish them.” No Duty to Create Records Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Based upon a conversation between a Public Records Division staff member and a City representative, the City confirmed that it has no records responsive to the request. Conclusion Accordingly, Where the City has confirmed that it does not possess records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Viglione is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joseph Viglione