CJ Ferry v. Fall River, City of - Office of the City Clerk (SPR 20232434)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2023 SPR23/2434 Alison M. Bouchard City Clerk City of Fall River One Government Center Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of CJ Ferry appealing the response of the City of Fall River (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 11, 2023, CJ Ferry requested “a copy of the letter/message sent from the Mayor and/or the Mayor’s office to the City Councilors on October 10, 2023.” The City responded on October 12, 2023. Unsatisfied with the City’s response, CJ Ferry appealed and this case, SPR23/2434, was opened as a result. While this appeal was pending, the City provided a supplemental response on October 23, 2023. 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 or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Alison M. Bouchard SPR23/2434 Page 2 October 26, 2023 custodian must provide the responsive records. Current appeal In the appeal, CJ Ferry states that “[t]he city/mayor said that no such document existed, yet I received the document from a source.” The City’s October 12th response In its October 12, 2023 response, the City states that “…there are no records responsive to your request, as there were no letters/messages to the City Council dated October 10, 2023 from the Mayor or from the Mayor’s Office.” The City’s October 23rd response In its October 23, 2023 response, the City states that “[w]hen the public records request was received on 10/11/23, the city’s Keeper of Records did not know of the existence of this confidential letter.” 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 October 23rd response, in conjunction with CJ Ferry’s appeal, it is unclear whether the City possesses the requested record. The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide CJ Ferry 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: CJ Ferry