Paul DeMeo v. Gardner, City of (SPR 20241245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2024 SPR24/1245 John Flick, Esq. City of Gardner, Law Department 144 Central Street, Suite 201 Gardner, MA 01440 Dear Attorney Flick: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2024, Mr. DeMeo requested “all Public Meeting documents (packet) provided to the city council for the March 25th meeting.” The City responded on April 16, 2024. Unsatisfied with the response, Mr. DeMeo petitioned this office and this appeal, SPR24/1245, 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). 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. See 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. 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

John Flick, Esq. SPR24/1245 Page 2 May 9, 2024 The City’s April 16th Response In its April 16, 2024 response, a representative for the City stated, “[m]y statements during the Monday, March 25th, 2024 informal meeting referred to the Monday, March 4th, 2024 regular meeting packet, which was posted on Thursday, February 29th, 2024. I made no reference to any other meeting packet. A meeting notice is required to be posted. A meeting packet, which may include supporting documents for items listed on the meeting notice, is not required to be posted. There was a meeting notice posted for the Monday, March 25th, 2024 informal meeting. There was no meeting packet for this meeting.” Current Appeal In his appeal, Mr. DeMeo states, “I am appealing my Public Records request as stated below because… Gardner City Council president refused to provide the public record materials given to the city councilors but withheld from the public.” Based on the City’s response, it is unclear if the City possesses any records responsive to the 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). 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). The City must clarify whether it possesses records responsive to the request. Should the City require additional clarification, I encourage the parties to communicate to enable the City to search for the requested records more efficiently. Conclusion Accordingly, the City is ordered to provide Mr. DeMeo with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. DeMeo may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul DeMeo