Michael O'Farrell v. Fitchburg, City of (SPR 20251109)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2025 SPR25/1109 Joanna Bilotta-Simeone City Clerk City of Fitchburg City Hall 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta-Simeone: I have received the petition of Michael D. O’Farrell appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On April 7, 2025, Mr. O’Farrell requested, “... all correspondence (including records of telephone inquiries) and/or applications for permit(s) to erect, alter or maintain any sign, regardless of sign type, size or content filed with the City Building and Zoning Department by [identified individuals] and/or any individual or firm purportedly representing [identified individuals].” The City provided a response on April 7, 2025. Unsatisfied with the City’s response, Mr. O’Farrell petitioned this office and this appeal, SPR25/1109, 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. See 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 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 Bilotta-Simeone SPR25/1109 Page 2 April 25, 2025 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. See 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 April 7th Response In its April 7, 2025 response, the City stated, “[t]he City is in receipt of your public record request….The request is being forwarded to the City Department(s) that would be able to provide the requested records.” Current Appeal In his April 23, 2025 appeal to this office, Mr. O’Farrell stated, “[a]s this request currently stands, the City has neither provided a response nor requested additional time nor identified which municipal department has custody of the records contained in the request…” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. O’Farrell submitted his request on April 7, 2025, and the City has not provided the responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the City must provide an estimated date as to when it intends to complete its review and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis.

Joanne Bilotta-Simeone SPR25/1109 Page 3 April 25, 2025 Conclusion Accordingly, the City is ordered to provide the Mr. O’Farrell 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. O’Farrell may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael D. O’Farrell