Jessica Jacobson v. Fitchburg, City of - City Clerk (SPR 20230318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 2, 2023 SPR23/0318 Joanna Bilotta City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta: I have received the petition of Jessica Jacobson, appealing the response of the City of Fitchburg (City) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On January 13, 2023, Ms. Jacobson requested the following information: [1] Do public officials need to abide to their oath of office and follow city policies to be in compliance for the city’s public official insurance? [2] Please provide the updated insurance information and insurance company and the amount each city official is insured for the City of Fitchburg’s public official insurance coverage. [3] Please provide any and all emails and messages including but not limited to messaging and texts that could be considered offensive, hateful or against the heterosexual flag raising, including but not limited to Council members [specified individuals]. [4] Please provide any emails regarding the flag to outside groups including but not limited to groups or organizations that were in opposition of the flag, including but not limited to Council members [specified individuals]. [5] Please include any emails or messages from news stations including but not limited to reporters, journalists, and bloggers from public officials regarding the flag, including but not limited to [specified individuals]. [6] Please include any emails from public officials regarding the hateful divisional flag lowering event, including but not limited to Council members [specified individuals]. [7] Please provide the emails from any pastors or priests sent to the mayor or any other public official regarding the heterosexual/straight/nuclear family or natural family, whatever the church chose to call it. 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

Joanna Bilotta SPR23/0318 Page 2 March 2, 2023 The City provided responses on January 13, 2023 and February 1, 2023. Unsatisfied with the City’s responses, Ms. Jacobson petitioned this office and this appeal, SPR23/0318, 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. 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. 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 responses On January 13, 2023, the City responded by providing Ms. Jacobson with one component of her records request. On February 1, 2023, a City representative stated in an email that “I have sent an email request to follow up on your public records request that was submitted on Friday, January 13, 2023. I will let you know the status as soon as I have an update.” Current appeal In her current appeal, Ms. Jacobson states that she is “…trying to make a complaint to the Secretary of the Commonwealth’s Public Records Division on a public record request that the city is not answering.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall:

Joanna Bilotta SPR23/0318 Page 3 March 2, 2023 identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Jacobson’s request was submitted on January 13, 2023, and the City has not provided the majority of responsive records pertaining to those referenced above, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the City must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Ms. Jacobson with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Ms. Jacobson may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jessica Jacobson