Paul DeMeo v. Gardner, City of (SPR 20232246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 3, 2023 SPR23/2246 Titi Siriphan City Clerk City of Gardner 95 Pleasant Street Gardner, MA 01440 Dear Mr. Siriphan: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 11, 2023, Mr. DeMeo requested …all correspondence, from all parties, relative to Waterford Street School ... and Article 97 as the property was donated to the Town of Gardner in 1919. The Public Records request is to include any and all deeds relative to the property and any town meeting records when the donation was made describing the transaction and acceptance of the donation. The City provided a response on September 20, 2023. Unsatisfied with the response, Mr. DeMeo petitioned this office and this appeal, SPR23/2246, 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

Titi Siriphan SPR23/2246 Page 2 October 3, 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. Current appeal In his appeal, Mr. DeMeo states that he is “…appealing this Public Records request as the city failed to provide the requested information.” The City’s September 20th response In its September 20, 2023 response, the City stated that “[f]or this request there are no responsive records.” 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). Where Mr. DeMeo has requested records concerning the donation of a specified property to the City, I find it is unclear whether the requested records exist and are in the City’s possession. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. DeMeo 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Paul DeMeo