Hector E. Pineiro v. Worcester, City of (SPR 20231585)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1585 Janice E. Thompson, Esq. Assistant City Solicitor Law Department City of Worcester 455 Main Street Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Hector Pineiro, Esq. appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 8, 2022, Attorney Pineiro requested 21 categories of records concerning the “complaint, investigation and conclusions” related to a named individual. In an email dated October 12, 2022, the City confirmed receipt of Attorney Pineiro’s request. Subsequently, on March 31, 2023, the City provided a link to “two zipped files - one containing eighteen (18) files and one containing thirteen (13) files, and seven (7) additional files uploaded separately.” On April 28, 2023, Attorney Pineiro responded to the City, stating “I just access [sic] our public records portal and discovered that [the request] is still in progress.” On May 4, 2023, Attorney Pineiro asked if there were “any updates on the status of” the request. A representative of the City responded on May 5, 2023, advising that they would “take a look at this and work on getting [Attorney Pineiro] an update today or early next week.” A representative of the City responded to Attorney Pineiro again on May 10, 2023, indicating that they “did not forget about this” that they were “still looking into it.” Unsatisfied with the City’s response, Attorney Pineiro petitioned this office and this appeal, SPR23/1585, 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 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

Janice E. Thompson, Esq. SPR23/1585 Page 2 July 24, 2023 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. Att’y 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 or redacted portion of the responsive record. Current Appeal In his appeal, Attorney Pineiro asserts, “[o]n October 12, 2022 the City… replied to our public records request. Over the following months there were updates, but since March 31, 2023 there have not been any further records disclosures…. I respectfully request… the City… to comply providing the outstanding records to our office.” Based on the City’s response, in conjunction with Attorney Pineiro’s appeal, it is unclear if the City possesses additional records responsive to the request. 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). 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). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the City is ordered to provide Attorney Pineiro 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: Hector Pineiro, Esq.