Michael O'Farrell v. Fitchburg, City of - City Clerk (SPR 20241530)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 4, 2024 SPR24/1530 Joanna Bilotta-Simeone City Clerk Records Access Officer City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta-Simeone: I have received the petition of Michael O’Farrell appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 7, 2024, Mr. O’Farrell requested: [1.] Copies of paycheck stubs for each individual officer or employee or contractor or elected official of the City of Fitchburg including all employees, consultants or contractors of the Fitchburg Public School Department for three (3) consecutive pay day(s) or pay date(s) nearest the date of response to this request ...[;] [2.] Copy of current and dated alpha roster of all employees of the City of Fitchburg by department or section or office of assignment. Previous Appeal This request was the subject of a previous appeal. See SPR24/0886 Determination of the Supervisor of Records (April 8, 2024). In my April 8th determination, I ordered the City to provide Mr. O’Farrell with a response to the request. The City responded on April 8, 2024. Unsatisfied with the response, Mr. O’Farrell petitioned this office and this appeal, SPR24/1530, 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 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

Joanna Bilotta-Simeone SPR24/1530 Page 2 June 4, 2024 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The City’s April 8th Response In its April 8, 2024 response, the City provided several responsive records, including an image and two pdf documents. Current Appeal In his appeal, Mr. O’Farrell contends he did not receive all the responsive records. He asserts that the City’s response “included a copy of Payroll Registers for the months of January 2024 and February 2024, not the ‘three (3) consecutive pay day(s) or pay date(s) nearest the date of response to this request. Still further, the response did not include the requested alpha roster of employees by Department or section of the City of Fitchburg.” Additional Records 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). Further, 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). Based on the City’s response, and information provided in Mr. O’Farrell’s appeal petition, it is unclear whether the City possesses additional records responsive to Mr. O’Farrell’s request. If the City does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

Joanna Bilotta-Simeone SPR24/1530 Page 3 June 4, 2024 Conclusion Accordingly, the City is ordered to provide Mr. O’Farrell 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 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. Sincerely, Manza Arthur Supervisor of Records cc: Michael O’Farrell