Michael O'Farrell v. Fitchburg, City of (SPR 20241836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2024 SPR24/1836 Joanna Bilotta-Simeone City Clerk 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 Appeals This request was the subject of previous appeals. See SPR24/0886 Determination of the Supervisor of Records (April 8, 2024) and SPR24/1530 Determination of the Supervisor of Records (June 4, 2024). In my June 4th determination, I ordered the City to provide Mr. O’Farrell with a response to the request. The City responded on June 18, 2024. Unsatisfied with the response, Mr. O’Farrell petitioned this office and this appeal, SPR24/1836, 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 SPR24/1836 Page 2 July 8, 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(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. 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 June 18th Response In its June 18, 2024 response, the City states that it does not have any records responsive to the request. It provided Mr. O’Farrell with payroll registers for February and January of 2024. Current Appeal In his appeal, Mr. O’Farrell contends the city is withholding responsive records. He argues, “[t]he payroll department processes time cards, time sheets, and all other compensation matters for all municipal employees on a weekly and bi-weekly basis, certifies the bi-weekly payroll to be accurate and prepares and approves a so-called ‘check run’ and/or Direct Deposit data … and prints pay checks and pay stubs. … Paystubs are readily available, easily duplicated or photocopied and exist in electronic format for instant duplication.” Mr. O’Farrell also argues that the city is withholding an “alpha roster of employees.” Records in Existence 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). Additionally, 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). 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). In a telephone conversation between a staff attorney of the Public Records Division and an attorney for the City on July 1, 2024, the City confirmed that it has delivered all responsive records in its possession. The City states that all its paystubs are electronic, and it has no physical paystubs. It also states that it does not have an “alpha roster of employees.”

Joanna Bilotta-Simeone SPR24/1836 Page 3 July 8, 2024 Conclusion Where the City confirmed that it does not possess additional records responsive to Mr. O’Farrell’s request, I will now consider this administrative appeal closed. If Mr. O’Farrell is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Michael O’Farrell