Michael O'Farrell v. Fitchburg, City of (SPR 20251625)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2025 SPR25/1625 Joanna Bilotta City Clerk City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta: 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 May 21, 2025, Mr. O’Farrell requested the following: 1. Copies of all NOTICE OF VIOLATION ... signed and issued by any employee of the Building Department which specifically include mention of violation of Fitchburg Zoning Ordinance “§ 181.3267 Temporary Portable Storage Containers section A. 82” for the entire period of [a named individual’s] employment with the City of Fitchburg as Building Commissioner. 2. Copies of all citations and/or Notice of Violation of By-Laws or Regulations ... showing the dollar amount of fine signed and issued by any employee of the Building Department for violation of Fitchburg Zoning Ordinance § 181.3267 for the entire period of [the named individual’s] employment with the City of Fitchburg as Building Commissioner. 3. Copies of all correspondence on City of Fitchburg letterhead addressed to any commercial enterprise, tradesperson or homeowner issued and signed by any employee of the Building Department which orders the removal of any “shipping container” or “Temporary Portable Storage Container” for the entire period of [the named individual’s] employment with the City of Fitchburg. 4. Copies of all NOTICE OF VIOLATION . . . signed and issued by any employee of the Building Department which specifically include mention of violation of Fitchburg Zoning Ordinance “§ 181.3267 Temporary Portable Storage Containers section A. 82” for the entire period since [the named individual’s] employment with the City of Fitchburg as Building Commissioner ended during November, 2023 through the date of response to this request. 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

Joanna Bilotta SPR25/1625 Page 2 June 24, 2025 5. Copies of all citations and/or Notice of Violation of By-Laws or Regulations ... showing the dollar amount of fine signed and issued by any employee of the Building Department for violation of Fitchburg Zoning Ordinance § 181.3267 for the entire period since [the named individual’s] employment with the City of Fitchburg as Building Commissioner ended during November, 2023 through the date of response to this request. 6. Copies of all correspondence on City of Fitchburg letterhead addressed to any commercial enterprise, tradesperson or homeowner issued and signed by any employee of the Building Department which orders the removal of any “shipping container” or “Temporary Portable Storage Container” for the entire period since [the named individual’s] employment with the City of Fitchburg ended in November, 2023 through the date of response to this request. 7. Copies of any correspondence set to, or received from, the Fitchburg Police Department, Fitchburg District Court, Fitchburg Parks and Recreation Department, Fitchburg School Department, Fitchburg State University or any other municipal department seeking or obtaining approval or a Zoning variance to place a “Temporary Portable Storage Container” or “shipping container” on their respective properties. 8. Copies of any requests and/or application for Zoning variance for the placement of “Temporary Portable Storage Container” or “shipping container” received from any residential or commercial property owner, lessor or lessee whether approved or denied or withdrawn from the period January 1, 2005 through the date of response to this request. If approved, minutes of the meeting of the Zoning Board when application was approved or, alternatively, if approved by the Building Commissioner all notes and the document granting approval. The City responded on June 2, 2025 and assigned tracking number 25-080 to this request. Unsatisfied with the City’s response, Mr. O’Farrell petitioned this office, and this appeal, SPR25/1625, 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

Joanna Bilotta SPR25/1625 Page 3 June 24, 2025 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 June 2nd and June 3rd Responses In its June 2, 2025 response, the City coordinated with Mr. O’Farrell to provide the responsive records. Subsequently, I understand that on June 3, 2025, the City provided Mr. O’Farrell a USB thumb drive with numerous responsive records. Current Appeal In his appeal petition, Mr. O’Farrell contends that his “review of the content of the USB drive [provided by the City] disclosed little, if any, of the documents and files requested were included in the City’s response.” Records in Existence; Possession, Custody, or Control Please be advised that 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). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). Based on the City’s June 3rd response, and the information provided in Mr. O’Farrell’s appeal petition, it is unclear whether the City may possess additional records responsive to Mr. O’Farrell’s request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the City is ordered to provide 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.

Joanna Bilotta SPR25/1625 Page 4 June 24, 2025 O’Farrell may further 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 O’Farrell Alex Costa, Esq.