Fitzgerald, Steven v. Boston, City of - Law Department (SPR 20140126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords March 10, 2014 SPR14/126 Mr. George Bahnan City of Boston Law Department City Hall, Room 615 Boston MA 02201 Dear Mr. Bahnan: I have received the petition of Mr. Steven Fitzgerald appealing the response of the City of Boston (City) - Law Department (Department) to his request for records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, he requested a copy of a letter delivered to the City of Boston Mayor's Office on February 12, 2009 and copies of emails that were submitted by him to the constituent email address. Regarding Mr. Fitzgerald's request for a copy of a letter, you responded on behalf of the Mayor's Office explaining that there are no records responsive to this request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). Whereas there are no records responsive to his request for a copy of the letter, this portion of the appeal is closed. Regarding Mr. Fitzgerald's request for copies of emails submitted by him to the constituent email address, the Department has yet to respond. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. George Bahnan SPR14/126 March 10, 2014 Page Two The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Accordingly, the Department is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Accordingly, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Fitzgerald with a proper response to his request for copies of emails submitted by him to the constituent email address in a manner consistent with the Public Records Law, the Regulations and this detem1ination. This administrative appeal is now closed. Shawn A. Williams Supervisor of Records cc: Mr. Steven Fitzgerald