Jeff Brown v. Gloucester, City of - City Clerk (SPR 20233123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 11, 2024 SPR23/3123 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 November 23, 2023, Mr. Brown requested the following: [D]etailed information about a surveillance camera that is aimed in the direction of a sign that reads, “Babson Alewife Brook” which was placed this past year at the Alewife Brook crossing that is located relatively short distance from Old Rockport Road. The information [Mr. Brown] would like to obtain are any and all public document(s) that show why the surveillance camera was placed there and who (Department head’s name) gave the order to put the camera in place. The City responded multiple times, providing copies of two regulations and indicating it does not possess responsive records. Unsatisfied with the City’s responses, Mr. Brown appealed, and this case 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). 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 SPR23/3123 Page 2 January 11, 2024 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 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Brown contends that: The results the City provided ... did not fulfill [Mr. Brown’s] request regarding information about a municipal surveillance camera located in the vicinity of Alewife Brook. Please note that an admin from the Water Compliance Office informed [Mr. Brown] that the camera in question does in fact belong to the City. The City’s Responses In its December 4, 2023 response, the City provides hyperlinks to two regulations “relevant to the request,” and in a December 8, 2023 response, indicates that the City does not possess any additional records responsive to the request. See G. L. c. 4, § 7(26). Please be advised that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). In its November 27, 2023 response, the City states that “the game camera is not the property of the City of Gloucester,” and that “the game camera is not the property of the Department of Public Works.” In a letter to this office and Mr. Brown on January 3, 2024, an attorney for the City confirmed that “no public records responsive to the request were located.” Conclusion Where the City has confirmed that it does not possess records responsive to Mr. Brown’s request, I will now consider this administrative appeal closed.

Joanne M. Senos SPR23/3123 Page 3 January 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Brown