Richard Ferreira v. Taunton, City of - Law Department (SPR 20242147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2147 Matthew J. Costa, Esq. City Solicitor City of Taunton 15 Summer Street Taunton, MA 02780 Dear Attorney Costa: I have received the petition of Richard E. Ferreira appealing the response of the City of Taunton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 11, 2024, Mr. Ferreira requested the following: [1.] A detailed record of the $958,244.94 FEMA reimbursement the City of Taunton received for Covid reimbursement. This number represents what [the City Auditor] reported to the Municipal Council Finances Committee during [the City Auditor’s] presentation on Tuesday July 9, 2024. [2.] A detailed description of what actions [the City Auditor] or the city took to resolve the payroll records with the Taunton Police Department and FEMA. As you recall, FEMA would not reimburse the city for the Holiday Inn details because the police department’s actual payroll records did not match the police department’s invoices that were provided to FEMA. The City responded on July 19, 2024, providing numerous records responsive to Item 1 of the request and indicating it does not possess records responsive to Item 2. Unsatisfied with the City’s response, Mr. Ferreira petitioned this office, and this appeal, SPR24/2147, 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 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

Matthew J. Costa, Esq. SPR24/2147 Page 2 August 12, 2024 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 Responses In its July 17, 2024 response, with regard to Item 1, the City provides numerous responsive records, including copies of contracts and a revenue report. With regard to Item 2, the City indicates that it is not required “to create any new documentation.” In a further response to Mr. Ferreira on July 23, 2024, the City explains the following with regard to Item 2 of the request: [T]he City does not have any records in its possession that are responsive to your request. The City is not in possession of a record that provides “a detailed description of what actions you or the City took to resolve the payroll records with the Taunton Police Department and FEMA.” [The City Auditor] was accurate when he informed you that the public record law does not require the City to create records in response to a request. Current Appeal In his appeal petition, Mr. Ferreira contends that “there is no justification for denying a detailed description of what actions [the City of Taunton Auditor] or the city took to resolve the payroll records with the Taunton Police Department and FEMA.” He further contends that “because actions had to be taken prior to receiving reimbursements, providing the narrative or explanation that was required to be provided to FEMA would not be a new document.” Records in Existence; No Duty to Answer Questions, Create Documents 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). 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).

Matthew J. Costa, Esq. SPR24/2147 Page 3 August 12, 2024 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 an email to Mr. Ferreira and this office on July 31, 2024, the City further explains the following: The request at issue seeks “[a] detailed description of what actions you or the city took” to resolve an alleged issue, which the request describes as a discrepancy between police department payroll records and invoices relative to a FEMA reimbursement application. The request does not identify a particular record or records that are sought, but rather is phrased in the style of an interrogatory. The request is directed at the City Auditor. The City does not have a record that fits this description. There is no document that provides a detailed description of the actions that either the City Auditor individually or the City as an entity took to address this alleged problem. Therefore, [the City] informed the requestor that the City is not in possession of such a record. Conclusion Where the City confirmed that it does not possess additional records responsive to Mr. Ferreira’s request, I will now consider this administrative appeal closed. If Mr. Ferreira 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: Richard E. Ferreira