John Femino v. Salem, City of - Legal Department (SPR 20250899)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 7, 2025 SPR25/0899 Joanne Roomey Records Access Officer City of Salem 93 Washington Street Salem, MA 01970 Dear Ms. Roomey: I have received the petition of John Femino 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 March 14, 2025, Mr. Femino requested the following: [1] [Engineering records related to the replacement of sidewalks on Clover St. (Loring thru Canal) [from] about October 2024][;] [2] [A] copy of the video of the ZBA meeting for [an identified address] [from] about October 2023[;] [3] [A]ll documents submitted to the conservation department for the project at 106 Broadway. On March 15, 2025, Mr. Femino provided the City with further context for Item [3], requesting the following: [1] [A]ll communication, including but not limited to email, letters, etc[;] [2] [A]ll revisions of plans, front and back[,] with stamp of date received by the conservation department [dated] July [20]23, Sept[ember] [20]23, April [20]24, [and] Sept[ember] [20]24[;] [3] Any approvals [and/or] signatures with dates[.] 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 Roomey SPR25/0899 Page 2 April 7, 2025 The City responded on March 17, 2025, March 27, 2025, and April 1, 2025. Unsatisfied with the City’s responses, Mr. Femino petitioned this office and this appeal, SPR25/0899, 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 custodian must provide the responsive records. Current appeal In his appeal, Mr. Femino states, “[t]here may have been some records that have not been sent, therefore the reason for the appeal.” The City’s March 17th, March 27th, and April 1st Responses In its March 17, 2025 response, the City stated, “[t]he City of Salem has received your public records request and will ask the appropriate staff members to gather the information requested or provide you with the online links where you can access copies of the records you are seeking. We will get back to you shortly, within ten (10) business days….” In its March 27, 2025 response, the City stated, “[t]he City of Salem has researched your request and has compiled the attached documents. As far as your request for #2. ‘I would like a copy of the video of the ZBA meeting for 106 Broadway in about October 2023. What is the fee for that?’ Are you referring to the ZOOM recording? If so, they are only stored for 14 days until they are automatically deleted. Did you want a copy of the ZBA Minutes for October 18, 2023?” Regarding Item 2, in its April 1, 2025 communication, Mr. Femino acknowledged receiving a copy of the ZBA video for the identified address.

Joanne Roomey SPR25/0899 Page 3 April 7, 2025 Item 1 Although in its March 17, 2025 response the City provided a list of online public record resources, it is unclear if these resources were responsive to Item 1. Based on the City’s response, it is unclear if the City possesses any additional records responsive to Item 1. 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). 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). The City must clarify. Item 3 In its April 1, 2025 response regarding Item 3, the City stated, “[c]ould you please give me a specific list of what you are looking for. Not sure if any other departments have given you the documents you requested. Please see an additional document I received from ... Planning.” Upon review, it appears the City sent Mr. Femino certain email communications. Based on the appeal and the City’s responses, it is unclear if the City possesses any additional records responsive to Item 3. Specifically, it is uncertain whether the City possesses additional communications, any revisions of plans with stamp of date received by the conservation department dated July 2023, September 2023, April 2024, and September 2024 and any approvals and/or signatures with dates. 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). 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). Conclusion Accordingly, the City is ordered to provide Mr. Femino with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Mr. Femino may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1).

Joanne Roomey SPR25/0899 Page 4 April 7, 2025 Sincerely, Manza Arthur Supervisor of Records cc: John Femino