Michelle Smith v. Everett, City of - Office of the City Clerk (SPR 20241324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2024 SPR24/1324 Sergio Cornelio City of Everett 484 Broadway, Room 10 Everett, MA 02149 Dear Mr. Cornelio: I have received the petition of Michelle Smith appealing the response of the City of Everett (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 25, 2024, Ms. Smith requested, “any/all documents pertaining to . . . Liberty St., Everett MA from January 1, 2018-present … all documents/data/information, any legal/court documents including legal billing documents, any emails/postal mail between parties and their attorneys related to . . . Liberty St…” It appears the City provided responsive records on April 1, 2024. The City provide a further response on April 18, 2024. Claiming that the records were not responsive to her request, Ms. Smith petitioned this office, and this appeal was opened. 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. 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

Sergio Cornelio SPR24/1324 Page 2 May 15, 2024 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 18th response In its April 18, 2024 response, the City stated, “. . . I have reached out to the Solicitors office and confirmed that there are no other responsive documents that the [C]ity has on file.” Current appeal In Ms. Smith’s petition, she indicates, “…I made a public records request to the [City] … The City’s answer to the request was completely irrelevant information than requested. I would like to appeal their response and receive records that I asked for.” In an April 18, 2024 email to the City, Ms. Smith explained, “I am looking for the information below with specific interest in the relocation of the tenants at the time of the . . . Liberty [S]t. taking. The City stated that the tenants were put in a hotel at the [C]ity’s expense. I need the name of the hotel where they were housed and the receipt for their stay … I received documents on April 1, 2024 from your office regarding my [Public Records Law] request; however, the documents did not even come close to satisfying my request regarding the taking of Liberty St. Please send the information asked for [specifically,] all legal documents regarding the taking of the property, the bills showing the relocation of tenants, and any and all documents relating to what prompted the taking and the process that ensued after.” In light of the above, it is unclear if the City possesses any records that may be 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). 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). Consequently, the City must clarify whether responsive records exist. Conclusion Accordingly, the City is ordered to provide Ms. Smith 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 the response to this office at pre@sec.state.ma.us. Ms. Smith may appeal the substantive nature of the City’s response within ninety (90) calendar days. See 950 C.M.R. 32.08(1).

Sergio Cornelio SPR24/1324 Page 3 May 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Michelle Smith