Jeff Brown v. Gloucester, City of - City Clerk (SPR 20232723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2023 SPR23/2723 Joanne M. Senos City Clerk City of Gloucester 9 Dale Avenue Gloucester, MA 01930 Dear Ms. Senos: I have received the petition of Jeff Brown appealing the response of the City of Gloucester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 17, 2023, Mr. Brown requested, “any and all information pertaining to [a] 1.25 million grant awarded for open space [used to] protect a parcel of forest land that runs from Manchester-by-the-Sea to Essex and Gloucester.” The City responded on November 8, 2023. Unsatisfied with the response, Mr. Brown petitioned this office and this appeal, SPR23/2723, 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(d)(iv) (written response must “identify 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). 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

Joanne M. Senos SPR23/2723 Page 2 November 22, 2023 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 custodian must provide the responsive records. The City’s November 8th Response In its November 8, 2023 response, the City uploaded records through their online portal. Current appeal In his appeal, Mr. Brown states, “the documents the city provided me did not include filled out/completed forms and/or applications. I would like to obtain copies of all completed paperwork as part of this request.” In light of Mr. Brown’s appeal, it is unclear if the City possesses additional records that may be responsive to the request. Specifically, the City must confirm whether it possesses “filled out/completed forms and/or applications.” 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 responsive 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). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Brown 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: Jeff Brown