Mass Accountability Network v. Salem, City of - Legal Department (SPR 20242243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2024 SPR24/2243 Joanne M. Roomey Records Access Officer City of Salem Legal Department 93 Washington Street Salem, MA 01970 Dear Ms. Roomey: I have received the petition of Mass Accountability (requestor) appealing the response of the City of Salem (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2024, the requestor sought the following records, “... the process and the people that have put in their request to paint the crosswalks and who approved them ...” The City provided a response on July 23, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/2243, 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 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 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

Joanne M. Roomey SPR24/2243 Page 2 August 14, 2024 custodian must provide the responsive records. The City’s July 23rd Response In its July 23, 2024 response, the City stated, “[t]he City of Salem has researched your public records inquiry and there are no records that satisfy this request.” Current appeal In the appeal the requestor stated, “[t]he City’s] claims are they have no information on this process, from application to approval through the city council. Because of their claim there are no records of this process, I believe they are either withholding these records or have illegally painted the crosswalks. I spoke with someone on July 2nd 2024, who was supervising the crosswalk being painted in front of Saltonstall School on Lafayette street. He said this was a ‘city council initiative’ and that this crosswalk in front of the school was coordinated by the school committee. There should definitely be a paper trail and an easy response to inform the public as to how other[s] can request their message be painted on the city streets and who has already applied and who approved this to happen.” Based on the requestor’s claims, it is unclear if the City possesses any records 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). However, 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 the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mass Accountability