Colman Herman v. Fall River, City of - Office of the City Clerk (SPR 20250460)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 26, 2025 SPR25/0460 Seth T. Aitken City Administrator City of Fall River One Government Center Fall River, MA 02722 Dear Mr. Aitken: I have received the petition of Colman Herman appealing the response of the City of Fall River (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 15, 2025, Mr. Herman requested, “[r]ecords of any and all expenses that [an identified individual] incurred in [his] capacity of mayor of the City of Fall River for the period January 1, 2024 to December 31, 2024. [1] Expense reports… [2] Credit card statements… [3] Automobile expense records… [4] Any and all other records that document [the Mayor’s] expenses…” The City responded on February 15, 2025. Unsatisfied with the City’s response, Mr. Herman appealed, and this case, SPR25/0460, 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

Seth T. Aitken SPR25/0460 Page 2 February 26, 2025 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 February 15th Response In its February 15, 2025 response, the City states, “[n]o such records exist!” Current Appeal In his appeal to this office, Mr. Herman states, “[i]t is hard to imagine that in the space of a mere three hours on a day when city hall offices in New Bedford are closed that Mr. Aiken actually conducted a legitimate search for responsive records…” In light of Mr. Herman’s appeal, I find the City must clarify whether it possesses 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). The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. Herman 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: Colman Herman