Jessica Jacobson v. Fitchburg, City of (SPR 20232079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2023 SPR23/2079 Vincent P. Pusateri II, Esq. City Solicitor City of Fitchburg Law Department 718 Main Street Fitchburg, MA 01420 Dear Attorney Pusateri: 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 June 26, 2023, Ms. Jacobson requested a copy of “all emails from the [C]ity server that shared my public records request dated January 13, 2023 to [an] outside server between the dates January 13, 2023 to February 1, 2023.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1887 Determination of the Supervisor of Records (August 29, 2023). In my August 29th determination, I ordered the City to provide a response to Ms. Jacobson’s June 26th request within ten business days. Subsequently, the City provided a response on August 14, 2023. Unsatisfied with the response, Ms. Jacobson petitioned this office and the current appeal, SPR23/2079, 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, § 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 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

Vincent P. Pusateri, II, Esq. SPR23/2079 Page 2 September 15, 2023 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). The City’s August 14th response In its August 14, 2023 response, the City indicated: …[p]lease note that I have caused the IT Department to create a search rule looking for information that would be responsive to your requests. The search rules searched all emails from the [C]ity server and was as follows: Notice of rates of appeal All emails between 2023-01-13 and 2023-02-01, inclusive AND That contain j_m_jacobson@yahoo.com or the word Jacobson AND [from] address contains: fitchburgma.gov AND The To/CC fields do not contain fitchburgma.gov” The responsive emails are attached. You were a party to each one. After receiving these emails, I further conferred with the IT Department and determined that this was a complete and accurate search of the [C]ity email accounts. I took this extra step because I understand that you have been receiving unwanted . . . emails. Current Appeal In her petition, Ms. Jacobson indicates: [t]his is not a satisfactory answer I have the hate emails sent to me that had my public record request in it. A previous public record proved no citizen had requested that particular public record request that was in the email. The public record request is requesting the email from either the city clerk or officials that sent that particular public record request to [an] outside server between the dates January 13, 2023 and February 1, 2023 which is when the hate email was sent to me containing my public record request dated January 13, 2023. The email [the City] gave as a response was dated June 27, 2023. Outside of the dates requested. While this appeal was pending, on September 1, 2023, the City emailed this office and copied Ms. Jacobson, stating, “[a]n error occurred when responding to a Ms. Jacobson’s public records request on August 14, 2023. An incorrect packet that was labeled outside server responsive emails was attached to my reply. Attached to this email is the correct packet.”

Vincent P. Pusateri, II, Esq. SPR23/2079 Page 3 September 15, 2023 Following the September 1st response, Ms. Jacobson emailed this office and the City, asserting, “[t]his is still not a satisfactory answer…I know because of a separate public record request that Councilor Zarella stated himself that he took it upon himself to email all the [C]ity [C]ouncilors my public record request dated January 13, 2023 between the dates I have listed in this current public record request. And those emails are not even listed in this answer. Those emails should be followed and traced and see if any of those [C]ouncilors forwarded the public record request to [an] outside email/server.” In light of the above, it is unclear whether the City possesses additional records reflected in the timeline that was requested. 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). Consequently, I find the City must clarify whether additional records exist. 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 Joanna Bilotta-Simeone