Hugh C. Phillips, Esq. v. Gloucester, City of - City Clerk (SPR 20231159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 15, 2023 SPR23/1159 Joanne M. Senos City Clerk City of Gloucester 9 Dale Avenue Gloucester, MA 01930 Dear Ms. Senos: I have received the petition of Attorney Hugh C. Phillips, of Liberty Counsel, appealing the response of the City of Gloucester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2023, Attorney Phillips requested the following: 1. Any documents, including any emails or records prepared, received, transmitted, collected and/or maintained by the City regarding applications for or including use of City flagpoles between October 1, 2021, and the enactment of the City’s new flag policy on March 7 2023. Any documents, including any emails or records prepared, received, transmitted, collected and/or maintained by the City regarding applications for or including use of City flagpoles under the new policy from adoption on March 7, 2023, until the present. 2. All special event applications involving the use of City flagpoles and the City’s denial or approval of the application (along with the City’s rational, if any, for the denial or approval) between October 1, 2021, and the present. This includes applications under the previous and current City flag policies. 3. Any emails or other communications prepared, received, transmitted, collected and/or maintained by the City or between this Department and other city officials or employees regarding use of a city flagpole request or application between October 2021 and the present. The City responded on May 2, 2023, stating that the “request is excessively broad.” Unsatisfied with the City’s response, Attorney Phillips appealed, and this case was opened as a result. Subsequent to the opening of this appeal, on June 6, 2023, the City provided a supplemental response to this office and Attorney Phillips. 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

Joanne M. Senos SPR23/1159 Page 2 June 15, 2023 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. 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 May 2nd and June 6th Responses In its May 2, 2023 response, the City states that the “request is excessively broad, and so broad that it is not permitted by the PRL.” In its June 6, 2023 response, the City reiterates its claims that the response is too broad, and among other things, further argues the following: The City of Gloucester denied the public records request because it was not a request for an identifiable or particular document which an administrative staff person could easily locate. Instead, it was a request for a broad sweep of anything pertaining to a flagpole akin to a discovery request. An administrative staff person could not conduct a search of all city documents and determine if the document was responsive to the request. The request was “not sufficiently particularized or nor is there a reasonably described identification of the documents sought”. Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is

Joanne M. Senos SPR23/1159 Page 3 June 15, 2023 sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” The City is further 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, Attorney Phillips has provided descriptions of the categories of records he is seeking, including, among other things, a date range, the specific subject matter, and the specific types of applications. While his request may potentially result in a large volume of responsive records, he has provided sufficient particularity required to identify the documents he is seeking. This office encourages Attorney Phillips and the City to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide Attorney Phillips with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Hugh C. Phillips, Esq.