Jacquelyn Wehtje v. Fitchburg, City of (SPR 20231583)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2023 SPR23/1583 Joanna Bilotta-Simeone City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta-Simeone: I have received the petition of Jacquelyn Wehtje, appealing the response of the City of Fitchburg (City) to her request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 19, 2023, Ms. Wehtje requested copies of “…any and all of these documents received within the past six months from owners of agricultural or horticultural properties.” Previous appeal This request was the subject of a previous appeal. See SPR23/0923 Determination of the Supervisor of Records (May 19, 2023). The City provided a response on May 22, 2023. Unsatisfied with the response, Ms. Wehtje petitioned this office and this appeal, SPR23/1583, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld 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 SPR23/1583 Page 2 July 21, 2023 or redacted portion of the responsive record. The City’s May 22nd response In its May 22, 2023 response, the City stated the following: With regards to Determination SPR23-0923 from Manza Arthur, Supervisor of Records that was forwarded to the Agricultural Commission today; the Commission has to date not received any documents ‘from owners of agricultural or horticultural properties’ that are not currently protected from disclosure under Executive Session Minutes. Records in existence 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). Based on the City’s response, it is unclear whether it possesses records responsive to the request. To the extent that records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Ms. Wehtje with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Ms. Wehtje may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje