Jonathan Gerhardson v. Westfield, City of (SPR 20242255)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2024 SPR24/2255 Robyn Gay Records Access Officer City of Westfield 59 Court Street Westfield, MA 01085 Dear Ms. Gay: I have received the petition of Jonathan Gerhardson appealing the response of the City of Westfield (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2024, Mr. Gerhardson requested “[a]ll information related to actual or alleged fuel dumps by any civilian, state, or military aircraft landing at Barnes airport in the last 5 years.” The City responded on the same day, indicating it does not possess responsive records. Unsatisfied with the City’s response, Mr. Gerhardson petitioned this office, and this appeal, SPR24/2255, 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. 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

Robyn Gay SPR24/2255 Page 2 August 22, 2024 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 August 7th Response In its August 7, 2024 response, the City states that “we don’t have any records of fuel dumps by civilian, state, or military aircraft landing at Westfield-Barnes Regional Airport.” Current Appeal In his appeal petition, Mr. Gerhardson contends the following: This response implies Barnes does not have a policy regarding fuel dumping, or even a copy of any FAA policy on this emergency landing technique. I question the adequacy of the search and request the Supervisor of Records intervention. Records in Existence; No Duty to Answer Questions, Conduct Research, 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). 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). Additionally, 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). Subsequent to the opening of this appeal, in emails to this office on August 13, and August 14, 2024, the City further explained “that the City/Airport is not responsible for anything in the air with regard to fuel dumping (FAA),” and that the “Airport Manager ... indicated that the City/Airport is not involved or responsible for anything related to dumping of aviation fuel while the aircraft is flying.” Conclusion Where the City confirmed that it does not possess records responsive to Mr. Gerhardson’s request, I will now consider this administrative appeal closed. If Mr. Gerhardson 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).

Robyn Gay SPR24/2255 Page 3 August 22, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson