Matthew J. Koes, Esq. v. Worcester, City of - Law Department (SPR 20232781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2023 SPR23/2781 Michael Vigneux Records Access Officer City of Worcester 455 Main Street Worcester, MA 01608 Dear Mr. Vigneux: I have received the petition of Matthew J. Koes, Esq., of M. Koes Law, LLC., appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2023, Attorney Koes requested the following records: [w]ith respect to a lawsuit review related to IA2020-15 involving an [identified City Police Captain] (opened December 6, 2022 and closed August 18, 2023), [Matthew J. Koes, of M. Koes Law, LLC.] request[s] the following information from January 1, 2023 to present: [1] The identity of the “independent counsel” who conducted the review of the evidence in the lawsuit; [2] A list of the documents reviewed by the “independent counsel;” [3] A list of the individuals interviewed by the “independent counsel;” and, [4] The amount of compensation, if any, paid to the “independent counsel.” On September 10, 2023, the City acknowledged Attorney Koes’ request. Further, on September 25, 2023, the City provided a response stating, “[t]he City requires more time, up to an additional 15 business days as provided by statute, to complete the work necessary to fulfill this request. If responsive records become available before this timeframe, they will be provided as soon as possible.” On October 23, 2023, Attorney Koes sent a message through the City’s public records portal, stating, “[j]ust checking up on the status of this request. Please, advise.” 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

Michael Vigneux SPR23/2781 Page 2 December 1, 2023 In an October 30, 2023 email to Attorney Koes and copied to the Public Records Division, Assistant City Solicitor, Janice E. Thompson, asserted, “[t]he City is in the process of responding to your request; however, the Law Department is moving locations and will be offline until Technical Services reconnects computers and phones, normal operations will resume on Thursday 11/02/2023. You should expect to receive a response at the end of the week.” As a result of not receiving any further response or update from the City, on November 16, 2023, Attorney Koes petitioned the Supervisor of Records, and this appeal 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 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). 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. Timeliness of providing responsive records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes

Michael Vigneux SPR23/2781 Page 3 December 1, 2023 set forth herein. G. L. c. 66, § 10(b)(vi). The request was submitted on September 10th, and the City responded on September 25th, indicating it required more time to respond. On October 30th, the City indicated it is in the process of responding to the request, and that Attorney Koes should expect to receive a response at the end of the week. However, to date, the City has not provided any of the responsive records. As such, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Specifically, it is unclear why the City has not provided Attorney Koes with an update to the request, and why the City cannot provide responsive records on a rolling basis in order to satisfy the September 10th request. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). I find the City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Attorney Koes with a response to the 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: Matthew J. Koes, Esq. Janice E. Thompson, Esq.