Geoffrey Epstein v. Framingham, City of - City Clerk (SPR 20241422)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2024 SPR24/1422 Paul J. Iverson Records Access Officer City of Framingham 150 Concord Street Framingham, MA 01702 Dear Mr. Iverson: I have received the petition of Geoffrey Epstein appealing the response of the City of Framingham (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 1, 2024, Mr. Epstein requested “copies of all the Mayor updates delivered at City Council meetings since he took office on January 1, 2022.” Prior Appeal This request was the subject of a previous appeal. See SPR24/0313 Determination of the Supervisor of Records (February 14, 2024). In my February 14th determination, I directed the City to clarify if it possessed records responsive to the request. The City provided a response on February 29, 2024. Unsatisfied with the City’s February 29th response, Mr. Epstein petitioned the Supervisor of Records 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 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

Paul J. Iverson SPR24/1422 Page 2 May 24, 2024 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 February 29th response In its February 29, 2024 response, the City stated, ‘…there are no records responsive to this request in the possession, custody, or control of the City of Framingham.” Current Appeal In Mr. Epstein’s petition, he asserts, “[t]he reason for appeal is that for anyone watching the [City’s] Council meetings, it is quite obvious that when the Mayor gives his update, he is reading from a document. I could include many videos which show this, but include just one here to prove the point: https://www.youtube.com/watch?v=IHSCKmguchs. The video clearly shows the Mayor reading from a 2 page document. Each Mayoral report or update is done i[n] the same manor [sic]: the Mayor reads from a document. The video evidence is compelling…” Records in Existence; Possession, Custody, or Control The City is 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). Further, 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 light of the information provided in Mr. Epstein’s appeal petition, it is unclear whether the City possesses records responsive to this request. Specifically, the City must clarify if it possesses the “2 page document” referenced in Mr. Epstein’s petition, and other records within the time period reflected in his request. The City must clarify. Conclusion Accordingly, the City is ordered to provide Mr. Epstein 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.

Paul J. Iverson SPR24/1422 Page 3 May 24, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Geoffrey Epstein