Jessica Jacobson v. Fitchburg, City of (SPR 20231416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 6, 2023 SPR23/1416 Joanna Bilotta-Simeone City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta-Simeone: I have received the petition of Jessica Jacobson appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2023, Ms. Jacobson requested the following: [1] What is the City Fitchburg’s process to file a misconduct complaint on a Fitchburg Public official; [2] Please provide details a citizen should follow to file a Misconduct Complaint on a Fitchburg Public official; and [3] Please provide the contact information of the correct department or persons to file a misconduct complaint on a Fitchburg Public [O]fficial. Prior Appeal The requested record or information was the subject of a prior appeal. See SPR23/1225 Supervisor of Records (Supervisor) Determination (June 21, 2023). In my June 21st determination, I ordered the Department to provide Ms. Jacobson with a response to her request. The City provided a response on June 21, 2023. Unsatisfied with the City’s response, Ms. Jacobson petitioned the Supervisor, and the current appeal was opened. 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, § 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

Joanna Bilotta-Simeone SPR23/1416 Page 2 July 6, 2023 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 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 City’s June 21st response In its June 21, 2023 response, the City informed Ms. Jacobson, “[t]here is no document or record containing instructions we have to file a complaint against a public official. As such there is [no] contact information to be supplied.” In her petition, Ms. Jacobson asserts, “[s]o the [City] has no way to file a misconduct complaint against a [C]ity official … This is unacceptable…” Further, Ms. Jacobson informed this office on June 22, 2023, “… [t]here needs to be some sort of misconduct process for the [City].” 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 addition, under 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). However, based on the City’s June 21st response, it is unclear whether the City conducted a diligent search for any records or information responsive to Ms. Jacobson’s request. I find that the City must clarify this matter.

Joanna Bilotta-Simeone SPR23/1416 Page 3 July 6, 2023 Conclusion Accordingly, the City is ordered to provide Ms. Jacobson 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: Jessica Jacobson