James E. Neyman v. Worcester, City of (SPR 20230789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2023 SPR23/0789 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 on behalf of his client, James Chabot, appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2021, Mr. Chabot requested “…emails exchanged between [MassHire] directors and other staff members for the dates ranging from May 1, 2020, to December 31, 2020.” Previous appeals This request was the subject of previous appeals. See SPR22/2928 Determination of the Supervisor of Records (January 6, 2023) and SPR23/0418 Determination of the Supervisor of Records (March 16, 2023). In my January 6th determination, I found that the City had not met its burden to withhold 22 email communications under the attorney-client privilege. In my March 16th determination, I found that it was unclear whether there were additional records responsive to the request. The City provided a further response on March 23, 2023. Unsatisfied with the City’s response, Attorney Neyman petitioned this office and this appeal, SPR23/0789, 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). 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. SPR23/0789 Page 2 May 5, 2023 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 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 March 23rd response In its March 23, 2023 response, the City stated the following: A review of the records shows that the City provided records that date back to May 2020, for many different dates not only 11/23 and 11/24. All the email chains are complete. It’s fairly easy to tell where the beginning of each email chain begins and ends because of the way the communications are compiled. There are no portions cut off or missing. The beginning of each new email chain begins with the RAO’s name at the top. Email chains read in reverse chronological order. There are no documents being improperly withheld as alleged in your appeal. The only documents withheld are set forth in the privilege log that was provided to you. Attorney client privilege is applicable to those communications. There is nothing further to provide. Current appeal In his appeal, Attorney Neyman states that he “…disputes that there are no documents being withheld.” Based on the foregoing, where all records except those covered by attorney-client privilege have been provided by the City, it is unclear what the basis of Attorney Neyman’s appeal is. Attorney Neyman is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Further, 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. Atty 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). Conclusion Accordingly, I am unable to issue a determination at this time. Attorney Neyman may wish to clarify his specific objections to the City’s response.

Janice E. Thompson, Esq. SPR23/0789 Page 3 May 5, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Attorney James Neyman