Mara Dolan v. Worcester, City of (SPR 20241082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2024 SPR24/1082; SPR24/1083; SPR24/1084; SPR24/1085 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester – Law Department 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petitions of Mara Dolan, Esq., appealing the nonresponse of the City of Worcester (City) to four requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2024, Attorney Dolan requested the following records for the period of time January 1, 2000 to present: Any and all allegations of misconduct, including but not limited to: excessive use of force, falsifying evidence, false oral or written statements, race-based conduct, and/or perjury involving [four identified individuals]. Claiming to not yet have received a response, Attorney Dolan petitioned this office and these appeals, SPR24/1082, SPR24/1083, SPR24/1084, and SPR24/1085 were opened as a result. Subsequently on April 11, 2024, the City provided a response. 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 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

Janice E. Thompson, Esq. SPR24/1082; SPR24/1083; SPR24/1084; Page 2 SPR24/1085 April 22, 2024 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 April 11th Response In its April 11, 2024 response, the City stated, “[t]he City intended to advise you that additional time was required to respond to your requests and continue working to fulfill them, but in light of notice of these appeals (not filed in accordance with the regulations) we will pause the work associated with your requests for now.” Possession, Custody, or Control of Public Records Despite the City’s response, it is unclear if the City possesses the requested records. The duty to comply with a request 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 whether it possesses the requested records. To the extent that records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Attorney Dolan with a response(s) to her requests 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(s) must be provided to this office. It is preferable to send an electronic copy of the response(s) to this office at pre@sec.state.ma.us. Attorney Dolan may appeal the substantive nature of the City’s response(s) within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mara Dolan, Esq.