James E. Neyman v. Worcester, City of (SPR 20230418)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 16, 2023 SPR23/0418 Janice E. Thompson, Esq. Assistant City Solicitor Law Department City of Worcester 455 Main Street, Suite 309 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Attorney James Neyman appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2021, Attorney Neyman requested emails exchanged between MassHire directors and other staff members for the dates ranging from May 1st, 2020, to December 31st, 2020. Previous appeal This request was the subject of a previous appeal. See SPR22/2928 Determination of the Supervisor of Records (January 6, 2023). The City provided a response on February 15, 2023. Unsatisfied with the City’s response, Attorney Neyman petitioned this office and this appeal, SPR23/0418, 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(d)(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 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

Janice E. Thompson, Esq. SPR23/0418 Page 2 March 16, 2023 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). The City’s February 15th response In its February 15, 2023 response, the City provided Attorney Neyman with records responsive to his request. Current appeal In his appeal, Attorney Neyman stated that “[t]he City provided emails only for the dates November 23rd and November 24th and many of these email chains supplied were incomplete (did not include the entire email chain) and/or still are being improperly withheld. Our position is that the City has yet to satisfy its obligation of supplying the requested documents and/or the City is still withholding these documents.” Although in an email dated February 22, 2023, a representative of the City informed a staff attorney of the Public Records Division that the City had no additional records responsive to the request, it is unclear why the City is unable to retrieve the balance of records in the email chains for November 23rd and 24th as referenced in Attorney Neyman’s appeal. The City is advised 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). To the extent that 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). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Attorney Neyman with a response to the 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 this response to this office at pre@sec.state.ma.us. Attorney Neyman 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: James Neyman, Esq.