Carrie Comeau v. Fitchburg, City of - City Clerk (SPR 20240605)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2024 SPR24/0605 Joanna Bilotta City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta: I have received the petition of Carrie Comeau appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2024, Ms. Comeau requested the following records relating to the 2023 general election: [1] A list of all the approved employees hired and or categorized as election poll workers, including name of employee, title, and hourly rate[;] [and], [2] [Poll worker] roster for the following: (a) Early vote schedule by day to include names of [poll workers], hourly rate and number of hours worked[;] [and,] (b) [Poll worker] schedule for the September 26, 2023 election, by ward and precinct, to include names of [poll workers], hourly rate and number of hours worked. In a February 9, 2024 response to Ms. Comeau, the City asserted, “…the [February 7, 2024] request is being forwarded to the City Departments that would be able to provide the requested records.… This records request should be responded to no later than Thursday, February 22, 2024.” On February 27, 2024, Ms. Comeau petitioned the Supervisor of Records, stating, “I am writing to you to appeal the non-responsiveness of Joanna Bilotta, [City Clerk] to my request…” As a result of Ms. Comeau’s February 27th petition, this appeal, SPR24/0605, was opened. While this appeal was pending, the City provided a supplemental response on February 29, 2024. 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

Joanna Bilotta SPR24/0605 Page 2 March 12, 2024 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. 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 On February 29, 2024, the City provided a response, including some records. While a determination of this appeal was pending, in an email correspondence on March 6, 2024, Ms. Comeau, objecting to the City’s February 29th response states, “I would like to appeal this [February 29th] response from the records custodian of Fitchburg. [Ms. Bilotta] failed to provide the following information: [1] The list of [poll workers] is missing their title [;] [and,] [2] The EV and election rosters do not include the number of hours each individual worked.” Based on the City’s February 29th response, coupled with Ms. Comeau’s March 6th email indicating that the City did not provide certain information, it is unclear whether the City has additional records responsive to Ms. Comeau’s 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). The City must clarify this matter.

Joanna Bilotta SPR24/0605 Page 3 March 12, 2024 Conclusion Accordingly, the City is ordered to provide Ms. Comeau 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Carrie Comeau