Paul DeMeo v. Gardner, City of (SPR 20233113)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 10, 2024 SPR23/3113 John Flick, Esq. City of Gardner, Law Department 144 Central Street, Suite 201 Gardner, MA 01440 Dear Attorney Flick: 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 August 17, 2023, Paul DeMeo requested “all records you have on money received and expenditures made for the Waterford Street School from 1/1/2022 through 8/17/2023.” Mr. DeMeo specified that this request included “all records from GAAMHA Inc.” as well as “all correspondence with GAAMHA Inc.” and “any correspondence from Mayor Nicholson or any other city official relative to the [sic] Mayor Nicholson’s request for a loan order in [a particular amount].” Prior Petition and Appeal This request was the subject of a prior time petition. See SPR23/2067 Determination of the Supervisor of Records (September 6, 2023). In my September 6th determination, I granted the City an extension of 30 business days in responding to the request. This request was also the subject of a prior appeal. See SPR23/2637 Determination of the Supervisor of Records (November 14, 2023). In my November 14th determination, it was my understanding that the City provided a response on November 13, 2023. Unsatisfied with the response, Mr. DeMeo petitioned this office and this appeal, SPR23/3113, 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 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

John Flick, Esq. SPR23/3113 Page 2 January 10, 2024 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. The City’s November 13th Response In its November 13, 2023 response, the City stated, “one issue arose during the City’s search for documents responsive to [Mr. DeMeo’s] request that I would like to address which further complicated the City’s ability to respond in a timely manner… the City was constructing a new elementary school that first opened in the fall of 2022. The project for the new elementary school was called the ‘Waterford Street School Elementary School Project.’ It is my understanding that new school construction projects have to be named for the school the new school will be replacing. In light of this, and based on the parameters of your record request, the City’s initial search for responsive records yielded over a million documents. Some of the records are in paper format, but are thousands of pages thick (i.e. building plans and specs with costs of material lists). Can you please narrow your request? Again, I apologize for the delay.” Current Appeal In his appeal, Mr. DeMeo states, “[the request] includes any and all records pertaining to Mayor Nicholson’s loan request of $550,000 from the city council. Two executive sessions of the council were held in closed session… to discuss the [particular amount] loan order of which the minutes of the closed session have not been released though the [particular amount] was finally approved…” Based on the City’s response and Mr. DeMeo’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). The City must clarify whether it possesses records responsive to the request. Should the City require additional clarification, I encourage the parties to communicate to enable the City to search for the requested records more efficiently.

John Flick, Esq. SPR23/3113 Page 3 January 10, 2024 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 10 business days. A copy of the 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. Mr. DeMeo may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul DeMeo