Paul Chalifour v. Wilmington- Town of, Fire Department (SPR 20240717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2024 SPR24/0717 Chief William F. Cavanaugh, III Wilmington Fire Department 1 Adelaide Street Wilmington, MA 01887 Dear Chief Cavanaugh: I have received the petition of Paul L. Chalifour appealing the response of the Wilmington Fire Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 8, 2023, Mr. Chalifour requested the following: [1.] The transcripts for any and all 911 calls, radio transmissions, log entries and fire department reports related to the call to Darby Lane on 12/7/2023 at approximately 2:45 PM to include transcripts of all fire department radio transmissions through the completion of the call up to and including the ambulance return to quarters. And a record of whether or not OSHA was contacted and if so, records and transcripts of any calls or communications or emails to OSHA made or initiated by a member of the fire department or public safety dispatch that have been generated as a result of this call. [2.] A list of all fire department personnel who have received Blasting Detail Orientation Training and each accompanying date that their training was successfully completed. The Department responded on December 22, 2023, providing numerous records. Following further correspondence, the Department responded again on March 7, 2024, indicating it does not possess additional responsive records. Unsatisfied with the Department’s response, Mr. Chalifour 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 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

Chief William Cavanaugh SPR24/0717 Page 2 March 21, 2024 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 In his appeal petition, Mr. Chalifour explains that “Part 1 was fulfilled,” and he contends the following with regard to Part 2 of the request: I would like to know if in fact the dates that a firefighter attended a specific training course at the Mass Fire Academy falls under one of the specific exemptions to the Public Records Law. I would also maintain my compliant that the initial denial did not contain the statutorily required elements. Furthermore, I would now add that paragraph (ii) and paragraph (iii) we’re not followed as the Fire Chief did not inform me in his initial response that the WFD did not hold the records sought and that he did not inform me of the agency that did hold the records. The Department’s December 22nd and March 7th Responses With regard to Part 1 of the request, in its December 22, 2023 response, the Department provides numerous records, and explains that it does not possess others. With regard to Part 2 of the request, in its December 22nd response, the Department provides “a list of members who have taken the Blasting Orientation Course and are on the Blasting Call List.” Additionally, the Department indicates that it “will not provide dates as [the Department has] been informed by legal counsel at the Massachusetts Fire Academy that student records are exempt from public records requests.” In its March 7, 2024 response, the Department further explains the following: As blasting safety watch is not a mandatory training for any Firefighter in the Commonwealth of Massachusetts, there is no “certification”. As a matter of practice ... Wilmington has always required that ... members go through a blasting orientation prior to working any blasting detail. For many years, that orientation

Chief William Cavanaugh SPR24/0717 Page 3 March 21, 2024 was handled through the Wilmington Fire Prevention Officer. There was not any paperwork associated with those orientations. As of the last number of years, the Department of Fire Services constructed an “Online Blasting Orientation”. This course is also not mandatory for Firefighters to work blasting details. Members take this course on their own and then have a discussion with their Officer to ensure that they are aware of the rules and regulations surrounding blasting in the Commonwealth. At that time, they are added to the blasting list. [The Department does] not keep track of the dates that they do this. Possession, Custody, or Control 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). Additionally, 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 March 7th response, the Department confirms that “the Town of Wilmington is not in custody of Firefighter Blasting Training Records,” and indicates that the Department of Fire Services or the Massachusetts Fire Academy may possess the records of training dates that Mr. Chalifour seeks. Additionally, in a telephone conversation with this office on March 11, 2024, the Department confirmed that it does not possess records of the dates of blasting training. Conclusion Where the Department has confirmed that it does not possess additional records responsive to Mr. Chalifour’s request, and has indicated the agency or agencies that may possess the responsive records, I will now consider this administrative appeal closed. If Mr. Chalifour wishes to submit an additional public records request to the Department of Fire Services or the Massachusetts Fire Academy, and is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul L. Chalifour