Joseph F. Hennessey v. Worcester, City of (SPR 20231074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2023 SPR23/1074 Michael Vigneux Records Access Officer City of Worcester – Law Department 455 Main Street, Room 301 Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Attorney Joseph F. Hennessey 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 April 7, 2023, Attorney Hennessey requested nine (9) categories of records regarding the investigation of a complaint filed by named individuals. The City provided a response on April 24, 2023. Unsatisfied with the City’s response, Attorney Hennessey petitioned this office and this appeal, SPR23/1074, 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. 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

Michael Vigneux SPR23/1074 Page 2 June 2, 2023 The City’s April 24th Response In its April 24, 2023 response, the City advised Attorney Hennessey that it “…requires more time, up to an additional 15 business days as provided by statute, to complete the work necessary to fulfill this request…” 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: 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 Attorney Hennessey’s request was originally submitted on April 7, 2023, and the City has not provided responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide the requested 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 Attorney Hennessey with a response to his 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. Attorney Hennessey may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Michael Vigneux SPR23/1074 Page 3 June 2, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joseph F. Hennessey, Esq.