Carrie Comeau v. Fitchburg, City of (SPR 20240686)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0686 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 6, 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[;] [2.] Poll worker roster… [for] early voting schedule by day to include names of poll workers, hourly rate and number of hours worked … [and] poll worker schedule for the November 7, 2023 election, by ward and precinct, to include names of poll workers, hourly rate and number of hours worked[; and] [3.] Total expenditure for “Election Workers” line item from July 1, 2023 through December 31, 2023. Previous appeal This request was the subject of a previous appeal. See SPR24/0562 Determination of the Supervisor of Records (February 29, 2024). The City responded on March 6, 2024. Unsatisfied with the City’s response, Ms. Comeau petitioned this office and this appeal, SPR24/0686, was opened as a result. Subsequently, on March 12, 2024, the City provided a supplemental response. Unsatisfied with the City’s supplemental response, on March 14, 2024, Ms. Comeau further petitioned this office. 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 SPR24/0686 Page 2 March 14, 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. The City’s March 6th and March 12th responses In its March 6, 2024 response, the City provided documents responsive to the request. Subsequently in its March 12, 2024 response, the City provided additional documents responsive to Item 3 of the request. Current Appeal Ms. Comeau indicated in her initial appeal that the City did not provide all documents responsive records to her request. Ms. Comeau stated: [The City] failed to provide the following information: 1. The list of poll workers is missing their title. 2. The EV and election rosters do not include the number of hours each individual worked. 3. There was no response to the request for total expenditure for the poll worker line item for the time period requested. Based upon a telephone conference between a staff attorney of the Public Records Division and a City representative, the City confirmed that, as of March 12, 2024, the City has now provided all responsive documents for this request. Subsequently on March 14, 2024, Ms. Comeau stated: I would like to appeal (again) the response from [the City] for failing to provide

Joanna Bilotta SPR24/0686 Page 3 March 14, 2024 the following information: 1. The list of poll workers is missing their title. 2. The EV and election rosters do not include the number of hours each individual worked. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the City has confirmed that it provided all responsive documents for this request and that it does not possess any additional records responsive to Ms. Comeau’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Comeau is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Carrie Comeau