John Femino v. Salem, City of - Legal Department (SPR 20252727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2025 SPR25/2727 Joanne M. 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 August 1, 2025, Mr. Femino requested: [1] Records for police details related to sidewalk work on Broadway[;] [2] Records for the building inspector (commissioner) conferring with the ZBA chair about the change of parking for … Broadway[;] [3] Records from the City solicitor’s team about any decision or legal advise [sic] to the different departments for … Broadway and Clover St.[;] [4] Records from … Broadway and Broadway for a curb cut[;] [5] Records for payment to the city for #4 [t]o make the curb cut. Prior Appeal This request was the subject of a prior appeal. See SPR25/2561 Determination of the Supervisor of Records (September 9, 2025). In my September 9th determination, I learned that the City provided Mr. Femino with a response on September 9, 2025. Unsatisfied with the City’s September 9th response, Mr. Femino petitioned this office and this appeal, SPR25/2727, 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 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 SPR25/2727 Page 2 September 29, 2025 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 September 9th Response In its September 9, 2025 response, the City states, “[t]he City of Salem has researched your request again and there are no records in our possession or control for numbers 2, 3, 4 and 5. As far as request #1, we will need more clarification with a specific date range.” Mr. Femino responded to the City on September 9, 2025, and provided the following date range concerning request #1: “[t]hat contractor provided records for work performed from Oct. 11 [through] Dec. 17, 2024. Police presence on the following dates: Oct.: 11, 16, 18, 21, 22, 23, 24, 25, 28, 29, 30 Nov.: 4, 5, 6, 15.” Current appeal In his appeal, Mr. Femino states “…I feel the City of Salem has not fulfilled my records request that was due on or about September 12, 2025.” In support, Mr. Femino argues that despite him providing the requested date range, the City has not responded…and therefore I appeal ...” Based on Mr. Femino’s claims, in conjunction with the City’s response, I find that the City has not met its burden in responding to Item 1 of Mr. Femino’s request after Mr. Femino provided the City with a specified date range. 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). However, 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). Consequently, the City must clarify whether any responsive records exist.

Joanne Roomey SPR25/2727 Page 3 September 29, 2025 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