John Femino v. Salem, City of - Legal Department (SPR 20251294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2025 SPR25/1294 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 request [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 SPR25/1294 Page 2 May 19, 2025 Previous Appeal The requested records were the subject of a previous appeal. See SPR25/0899 Determination of the Supervisor of Records (April 7, 2025). In my April 7, 2025 determination, I directed the City to clarify whether it possessed any additional records responsive to Item 1 and Item 3. The City provided a response on May 5, 2025. Unsatisfied with the City’s response, Mr. Femino petitioned this office and this appeal, SPR25/1294, 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. The City’s May 5th Response In its May 5, 2025 response, the City stated, “[p]er [the Supervisor of Records’] determination in the attached letter dated April 7, 2025, the City of Salem does not have any additional responsive records in their possession or control.” Current appeal In his May 8, 2025 petition to this office, Mr. Femino stated, “[s]ince ‘the City of Salem has not given any of the records in recent discussion and are long overdue…’ I am seeking to appeal ‘the City of Salem’s response with respect to Determination – SPR25/0899.’” No Duty to Create Records Please be advised, under the Public Records Law, a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not

Joanne Roomey SPR25/1294 Page 3 May 19, 2025 required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). In an email communication to the Public Records Division on May 8, 2025, the City confirmed that it has no additional records responsive to Mr. Femino’s request. Conclusion Where the City has confirmed that is does not possess additional records responsive to Mr. Femino’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Femino is not satisfied with the resolution of this administrative appeal, please be advised that this office share jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: John Femino