John Hawkinson v. Cambridge, City of - Law Department (SPR 20232722)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2023 SPR23/2722 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2023, Mr. Hawkinson requested “a copy of one of the Massachusetts Labor Cases reporter cases you cited in your letter this day?: Wakefield School Committee, 18 MLC 1114 (1991).” On November 9, 2023, the City replied and indicated that they did not have any responsive records. Unsatisfied with the City’s response, Mr. Hawkinson petitioned this office and this appeal, SPR23/2722, 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. 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. 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 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

Seah Levy SPR23/2722 Page 2 November 21, 2023 records custodian must provide the responsive records. The City’s November 9th response In its November 9, 2023 response, the City stated “[w]e do not have any records that are responsive to your public records request of October 18, 2023. The Massachusetts Department of Labor issued the decision and may be able to provide you with a copy.” Current Appeal In his appeal, Mr. Hawkinson claimed that the City has responsive records and has not provided a rationale to withhold the responsive records. Based on the City’s response, in conjunction with Mr. Hawkinson’s appeal, it is unclear if the City possesses any 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). 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). Consequently, the City must clarify whether any responsive records exist. Conclusion Accordingly, the City is ordered to provide Mr. Hawkinson 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: John Hawkinson