Maureen Flynn v. Newton, City of - Police Department (SPR 20230287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2023 SPR23/0287 Steven Smith Director of Police Certification PST Newton Police Department 1321 Washington Street Newton, MA 02465 Dear Mr. Smith: I have received the petition of Maureen Flynn appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2023, Ms. Flynn requested records, “…2019‐present in relation to carnivals held in Newton provided by Fiesta Shows aka Dean & Flynn specifically for police details/services... details/services, invoices and payments.” The City provided responses on February 10, 2023. Unsatisfied with the responses, Ms. Flynn petitioned this office and this appeal, SPR23/0287, 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 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

Steven Smith SPR23/0287 Page 2 February 28, 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 February 10th Responses In its first February 10, 2023 response, the City requested further specificity and Ms. Flynn narrowed her request. In its second February 10, 2023 response, the City stated, “I do not have anything under Fiesta Shows aka Dean & Flynn[.]” Current appeal In her appeal, Ms. Flynn states, “I submitted a request for public records to the city of Newton MA… and have received no records….” In light of the appeal made by Ms. Flynn, it is unclear if the City possesses any records responsive to the 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). To the extent that responsive records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the City is ordered to provide Ms. Flynn with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Maureen Flynn