Maureen Flynn v. Revere, City of - Office of the City Clerk (SPR 20230429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2023 SPR23/0429 Captain Michelle Mangino Commander Bureau of Administration Revere Police Department 400 Revere Beach Parkway Revere, MA 02151 Dear Captain Mangino: I have received the petition of Maureen Flynn appealing the response of the Revere Police Department (Department) 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 made a request to the City of Revere (City) seeking, “…records for the carnivals in Revere, 2019-present, in connection with Fiesta Shows aka Dean & Flynn.” On January 10, 2023, the Department responded on behalf of the City and provided a further response on January 20, 2023. Unsatisfied with the Department’s responses, Ms. Flynn petitioned this Office and this appeal, SPR23/0429, 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. Att’y 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

Captain Michelle Mangino SPR23/0429 Page 2 March 17, 2023 The Department’s January 10th and January 20th responses In the Department’s January 10, 2023 response, the Department provided responsive records. In the Department’s January 20, 2023 response, the Department indicated that all responsive records have been provided. Current appeal In her current appeal, Ms. Flynn indicated that the Department did not provide all the responsive records. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). In a telephone conversation between a Public Records Division staff attorney and a Department representative, the Department confirmed that it provided all responsive records in the Department’s possession. Conclusion Accordingly, where the Department has confirmed that all responsive records have been provided, and has no duty to create records responsive to the request, I will consider this administrative appeal closed. If Ms. Flynn is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Maureen Flynn