Kent DeMott v. Leominster, City of - Office of the City Clerk (SPR 20243117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3114; SPR24/3117 Elizabeth Doiron City Clerk City of Leominster 25 West Street Leominster, MA 01453 Dear Ms. Doiron: I have received the petitions of Kent DeMott appealing the responses of the City of Leominster (City) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 5, 2024, in two separate requests, Mr. DeMott requested: SPR24/3114 … a full, complete and unredacted [copies] of any and all communications with and between [an identified individual] and any and all city employee(s), contractors, agents or similar, which occurred at any point in time and were made in or by any and all manners possible. SPR24/3117 … a full, complete and unredacted [copies] of any and all communications with and between [an identified individual] and any and all city employee(s), contractors, agents or similar, which occurred at any point in time and were made in or by any and all manners possible. On September 5, 2024, the City responded to both requests. Unsatisfied with the City’s responses, Mr. DeMott petitioned this office and these appeals, SPR24/3114 and SPR24/3117, were 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

Elizabeth Doiron SPR24/3114; SPR24/3117 Page 2 December 2, 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. Att’y 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 September 5th Responses On September 5, 2024, the City responded to both requests stating, “[w]e have nothing on record for [the identified individual] in this office.” Current Appeal In both appeals, Mr. DeMott states, “it does not appear that [the records officer] made any actual effort to contact any individual, but rather provided a curt response just 32 minutes after receiving this request.” The City is 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, 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 responses, it is unclear whether the City possesses records responsive to Mr. DeMott’s requests. 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. The City must clarify. Conclusion Accordingly, the City is ordered to provide Mr. DeMott with a response to his requests, 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.

Elizabeth Doiron SPR24/3114; SPR24/3117 Page 3 December 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kent DeMott