John Femino v. Salem, City of - Legal Department (SPR 20251451)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1451 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 April 4, 2025, Mr. Femino requested the following: [1] …all records including but not limited to: emails, letters, correspondence, meetings, notes, inspections, etc. related to [a statement concerning an identified address][;] [2] …any similar records from the planning, zoning, ZBA, conservation for any new records from 2 weeks ago moving forward regarding [an identified address], including but not limited, communication from any city agent with the owner of [the identified address], or his agents[.] Prior Appeal and Petition This request was the subject of a prior appeal and time petition. See SPR25/0899 Determination of Supervisor of Records (April 7, 2025) and SPR25/0979 Determination of the Supervisor of Records (April 15, 2025). In my April 7th determination, I found that it was unclear if the City possessed additional records responsive to Mr. Femino’s prior March 15th request. On April 4, 2025, Mr. Femino submitted the above records request to the City, clarifying what documents he was seeking. In my April 15th determination, I found that the City established good cause for a time extension of 20 business days to fulfill Mr. Femino’s April 4th request. The City responded on April 10, 2025. Unsatisfied with the response, Mr. Femino petitioned this office and this appeal, SPR25/1451, was opened as a result. 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 SPR25/1451 Page 2 June 3, 2025 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. 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 10th Response On April 10, 2025, the City stated, “[t]he City has received a NEW request from Mr. Femino on April 4, 2025, clarifying what documents he is looking for…The City of Salem intends to produce any applicable records being sought though will need an additional 20 business days from the initial receipt of Mr. Femino’s request, therefore, we are asking for an extension until May 2, 2025.” Current Appeal In his May 22, 2025 petition to this office, Mr. Femino stated, “[t]he [C]ity has asked for an extension. Your department granted an extension of 20 business days. That deadline was last week. I have not received records…” 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

Joanne Roomey SPR25/1451 Page 3 June 3, 2025 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. Femino submitted his request on April 4, 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. 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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Femino