Maureen Flynn v. New Bedford, City of - Clerk's Office (SPR 20230198)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 15, 2023 SPR23/0198 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Maureen Flynn appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2023, Ms. Flynn requested “…records 2019-present for carnivals in [the City] provided by Fiesta Shows aka Dean & Flynn for services by the [City’s] police department. Specifically, requests for details/services, invoices and payment information.” The City provided responses on January 9, 2023 and January 23, 2023. Unsatisfied with the City’s responses, Ms. Flynn petitioned this office and this appeal, SPR23/0198, 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) (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

Nicholas DeMarco, Esq. SPR23/0198 Page 2 February 15, 2023 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 19th and January 23rd Responses On January 19, 2023, the City provided a response asserting, “[a]fter conducting a search of its departmental database, the Department has verified that it is not in possession of any responsive records matching the specifications given in [Ms. Flynn’s] January 4th [request].” On January 23, 2023, Lieutenant Scott A. Carola of the Department emailed Ms. Flynn stating, “[h]ello, I spoke with one of our clerks this morning and she stated that the invoices for details should be simply under Whaling City Festival. Please amend your request to reflect that and I will see to it.” Following this response, Ms. Flynn sent an email correspondence to the City on January 23rd, indicating: The whaling city festival is a carnival put on by fiesta shows aka dean & flynn, which is what i put in my original request for public records. [T]he town hall personnel and the police department would be familiar with both the event and fiesta shows aka dean & flynn and how they are associated. I don’t need to submit a new request, please comply with the request within the time frame specified by the Massachusetts Secretary of State’s office. Where Ms. Flynn has clarified and confirmed her records request, I find that the City has not met its obligation under the Public Records Law in responding to this request. In addition, where the City is aware of records that it has in its possession that are responsive to the request, I find that Ms. Flynn is not required to make a new 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; however, 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). In addition, I encourage the parties to continue to communicate to produce records efficiently. Conclusion Accordingly, the City is ordered to provide Ms. Flynn with a response to her 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.

Nicholas DeMarco, Esq. SPR23/0198 Page 3 February 15, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Maureen Flynn