Paula Sterite v. Everett, City of - Office of the City Clerk (SPR 20231505)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 13, 2023 SPR23/1505 Sergio Cornello Records Access Officer City of Everett 484 Broadway Everett, MA 02149 Dear Cornello: I have received the petition of Paula Sterite appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 27, 2023, Ms. Sterite requested “…a list of all nonprofit organizations, clubs or any entities using the Pope John property.” On June 6, 2023, on its FOIA Direct web portal, the City provided Ms. Sterite with a response. The City asserted, “[t]here are no responsive documents for this request.” In addition, on June 28, 2023, the City’s Solicitor, Colleen Mejia, responded to Ms. Sterite, informing her, “[y]ou asked for a list. There is no list kept thus there are no responsive documents.” Subsequent to receiving the City’s June 6th and June 28th responses, in a June 30th email, Ms. Sterite petitioned the Supervisor of Records (Supervisor), and as a result, this appeal was opened. In Ms. Sterite’s petition, she asserts, “[b]elow is my request, a pretty simple request as everyone in the City knows of at least 2 organizations using Pope John School. The [C]ity installed billboards for the 2 I know about. Followed by emails to the [C]ity [S]olicitor, one I included the [C]ity [C]ouncil, and her responses. Our taxes are being used to fund the [P]ope [J]ohn property. The [C]ity spends at least 15K a month on utilities for this building alone. Do you really believe the [C]ity doesn’t have a list of who is in the facilities?” 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

Sergio Cornello SPR23/1505 Page 2 July 13, 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 6th and June 28th Responses The City’s June 6th and June 28th responses, informed Ms. Sterite that it does not have the requested list. Based on Ms. Sterite’s June 30th petition, in conjunction with the City’s June 6th and June 28th responses, I find the City must clarify if it possesses records other than the requested list responsive to Ms. Sterite’s June 27th request and pertaining to any non-profit organizations, clubs or any entities using the Pope John property. 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 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). 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. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, the City is ordered to provide Ms. Sterite 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.

Sergio Cornello SPR23/1505 Page 3 July 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Paula Sterite Colleen Mejia, Esq.