Grace Ferguson v. New Bedford, City of - Clerk's Office (SPR 20231550)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2023 SPR23/1550 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023, Ms. Lennon requested, “... emails between city employees and two [named] individuals.” Previous appeals This request was the subject of previous appeals. See SPR22/1707 Determination of the Supervisor of Records (August 9, 2022); SPR22/1955 Determination of the Supervisor of Records (September 8, 2022) and SPR23/1045 Determination of the Supervisor of Records (May 31, 2023). The City responded on June 14, 2023. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR23/1550, 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 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

Nicholas DeMarco, Esq. SPR23/1550 Page 2 July 19, 2023 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s June 14th Response In its June 14, 2023 response, the City stated that it “...provided a formal response and corresponding responsive records in conformance with recommendations ... by the Supervisor of Records Office.” Current appeal In her appeal, Ms. Ferguson states, “[i]t is unclear whether there was nothing under the black redactions to begin with, or if those areas have now been redacted in white. I asked the city about this on June 16 but I have not received a response.” Based on Ms. Ferguson’s claims, in conjunction with the City’s response, the City must identify the type of records it has in its possession that it has redacted and cite a specific exemption pursuant to the Public Records Law. 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). However, 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). As a result, I find that the City did not satisfy its burden in responding to this records request. Conclusion Accordingly, the City is ordered to provide Ms. Ferguson with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson