Smith, Erin v. Boston, City of - Mayor's Office (SPR 20150263)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 14,2015 SPRlS/263 Ms. Laura Oggeri City of Boston Mayor's Office City Hall Square Boston, MA 02201 Dear Ms. Oggeri: I have received the petition of Erin Smith of behalf of the Boston Herald, appealing the response of the City of Boston (City) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Smith requested copies all emails sent by the City's Chief of Policy Joyce Linehan from November 1, 2014 to February 1, 2015. Ms. Smith later narrowed her request to three specific dates. The City provided 119 emails and withheld 27 emails claiming that they are exempt pursuant to the common law attorney client privilege and others are exempt pursuant to Exemption (d), the deliberative process exemption. The City provided no further substantive information in support of its claims. In her petition Ms. Smith referenced 79 email records that were not provided. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). 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); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the City did not contain the specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Laura Oggeri SPR15/263 May 14,2015 Page Two I find the City has failed to meet its burden of specificity in denying access to public records. Accordingly, the City is hereby ordered to provide all responsive records to Ms. Smith in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Smith a writtenexplanation, with specificity, how a particular exemption applies to each withheld record with along with a custodial index. See 950 C.M.R. 32.08, and a privilege index. See 950 C.M.R. 32.08(8); see also Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444, 460 (2008). In your response you stated the count of responsive records was adjusted to fit Ms. Smith's revised request. It is unclear whether this accounts forth 79 email messages Ms. Smith claims were not provided. Accordingly, the City is hereby order in its response to indicate the public status ofthese records. This administrative appeal is o osed. cc: Ms. Erin Smith