Kevin Maccioli v. Marlborough, City of (SPR 20243325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 20, 2024 SPR24/3325 Steven W. Kerrigan City Clerk City of Marlborough 140 Main Street Marlborough, MA 01752 Dear Mr. Kerrigan: I have received the petition of Kevin Maccioli appealing the response of the City of Marlborough (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 11, 2024, Mr. Maccioli requested, “electronic copies of all emails to and from School Committeewoman . . . pertaining to the October 8, 2024 school committee meeting, bullying and/ or Safe & Supportive Schools. I am seeking records from the period of October 3, 2024 - October 11, 2024.” On November 25, 2024, the City provided responsive records with redactions. Unsatisfied with the City’s responses, and claiming the City possesses additional responsive records, Mr. Maccioli appealed, and this case, SPR24/3325, 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. 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. 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

Steven W. Kerrigan SPR24/3325 Page 2 December 20, 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 November 25th Response In its November 25, 2024 response to Mr. Maccioli, the City provided responsive records with redactions. The City states, “please find PRR response for email correspondence for School Committee member, . . . for the period of October 3-11, 2024.” In his appeal petition, Mr. Maccioli states: [1] There is no information explaining whether the documents that are included in the packet are all the responsive documents in the possession of the record holder or whether any documents have been withheld. [2] Each page - except the first page which is only my initial request - contains multiple redactions, however no exemptions are cited for any redactions. These redactions appear to include the names and email addresses of multiple individuals including elected officials. [3] At least one document references attachments, however the response does not include any attachments. 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, 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). 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). Based on the documents already provided by the City, and the information provided in Mr. Maccioli’s appeal petition, it is unclear whether the City possesses additional responsive records. The City must clarify this. Additionally, The City is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). The City’s response did not contain the specificity required in a denial of access to public

Steven W. Kerrigan SPR24/3325 Page 3 December 20, 2024 records. The City has not cited an exemption for withholding or redacting the responsive records. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Maccioli with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Kevin Maccioli