Nicole L. Kieser v. Salem, City of - Legal Department (SPR 20231162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 16, 2023 SPR23/1162 Joanne Roomey Records Access Officer City of Salem 93 Washington Street Salem, MA 01970 Dear Ms. Roomey: I have received the petition of Nicole L. Kieser appealing the response of the City of Salem (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 1, 2023, Ms. Kieser requested from the City the following records: [1] Any comprehensive, citywide or downtown traffic assessments/studies for the city of Salem from 2000‐ present, including a report of findings/ recommendations. This should include any current, open studies in progress. I am not requesting traffic studies for specific potential developments, with the exception of any study for downtown from North Street at the Peabody line to Lafayette Street at Salem State University; [2] Any documented changes to traffic light/signal changes implemented as a result of any comprehensive traffic assessments/studies from North Street at the Peabody line to Lafayette Street at Salem State University from 2015‐ present; and [3] Electronic communications, including emails, text messages, cloud‐based shared documents to/from . . ., Salem’s Assistant Transportation Director from 2017‐present which include the following key terms: a. citywide traffic study b. comprehensive traffic study c. citywide traffic assessment d. comprehensive traffic assessment; and, [4] Electronic communications, including emails, text messages, cloud‐based shared documents to/from . . ., Salem’s Transportation Director from 2017‐ present which include the following key terms: (a) citywide traffic study (b) comprehensive traffic study 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 Roomey SPR23/1162 Page 2 June 16, 2023 (c) citywide traffic assessment (d) comprehensive traffic assessment. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1042 Determination of the Supervisor of Records (Supervisor) (May 18, 2023). In my May 18th determination, I closed the appeal after Ms. Kieser requested a withdrawal. On June 1, 2023, the City provided Ms. Kieser with a response, including responsive documents. The City’s June 1st response states, “[t]he IT Department has completed their search for emails regarding communication records with specific search terms to/from [two identified persons] from 2017-present which include the following key terms: (a) citywide traffic study; (b) comprehensive traffic study; (c) citywide traffic assessment; and (d) comprehensive traffic assessment. The attached documents are everything the [C]ity has in their possession or control…” As a result of the City’s June 1st response and production of records, Ms. Kieser petitioned the Supervisor again, and the current appeal was opened. In her June 1st petition, Ms. Kieser asserts, “[b]ased on the detail of my request, I am doubtful that a full and thorough search of all electronic communications has been undertaken by the City to provide the responsive records. In a City of almost 45,000 residents and notoriously difficult traffic issues, I find it difficult to believe that in a six (6) year period of time, there was only one chain email that was responsive to my request…” 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) (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

Joanne Roomey SPR23/1162 Page 3 June 16, 2023 burden of establishing the applicability of an exemption). 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 Response of the City’s Legal Office Subsequent to the opening of the current appeal, the City provided a June 12, 2023 supplemental response. In its response, the City indicated that in a May 17th email, the City’s Electrician, informed Ms. Kieser, “…we have made a significant amount of changes to our signals at various intersections and we are continuing to do so. There are too many to mention in writing. However, if you or a representative would like to tour of the City, I will be able to walk you through them.” In addition, the City’s May 17th response asserted, “[t]he City’s traffic signals are overseen by the City Electrician who has been working on a multi-year upgrade of the City’s network to improve communications between them as well as introduce concurrent phasing which is intended to improve the processing of both vehicular and pedestrian traffic. The Electrical Department would have information related to signal upgrades that have occurred to date…” The City provided in its June 12th response: “[1] City’s Complete Streets Policy; [2] Imagine Salem Report; [3] Bike Master Plan; [4] Walk Audit (for North St conducted in 2019); [5] North Street For All Project[s]; and [6] North Street FAQ.” Further in the City’s June 12th response, it asserted, “[o]n May 22, 2023, [Ms. Roomey] requested an email search be conducted by our IT Department with the [key words provided by Ms. Roomey]. On June 1, 2023, after downloading and converting the emails into .pdfs, I sent Ms. Kieser 50 pages of emails with the key terms that she requested and told her those were the only documents that were in the [C]ity’s possession or control. We have given Ms. Kieser everything the [C]ity has in their possession or control, therefore this request has been satisfied.” 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

Joanne Roomey SPR23/1162 Page 4 June 16, 2023 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). However, based on the City’s May 17th and June 12th responses, it is unclear whether the City made a diligent search for the email records, and whether the City and Ms. Kieser can work together to suggest any other “key search terms,” to enable the City to provide any additional email communications. I encourage the parties to work together to resolve this issue so that any additional email communications can be provided that are responsive to Ms. Kieser’s request. The City must clarify this issue. Further, the City indicated in its May 17th and June 12th response, “…we have significant amount of changes to our signals at various intersections and we are continuing to do so. There are too many to mention in writing.” The City only provided six of the City-wide studies regarding the changes to traffic signals in the City. However, it is unclear whether the City has a list of all the changes, or proposed changes to traffic signals in the City that can be provided to Ms. Kieser. The City must use its superior knowledge of the records to clarify this issue. Conclusion Accordingly, the City is ordered to provide Ms. Kieser with a response to her 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Nicole L. Kieser