Albano, Esq., Jonathan v. Boston, City of - Mayor's Office (SPR 20150727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 30, 2015 SPRlS/727 Ms. Caroline Driscoll, Esq. City of Boston Law Department City Hall, Room 615 Boston, MA 0221 0 Dear Attorney Driscoll: I have received the petition of Jonathan M. Albano, Esq., filed on behalf of the Boston Globe, appealing the response of the City of Boston Mayor's Office (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Andrew Ryan of the Boston Globe requested text messages sent between Mayor Martin J. Walsh and his Chief of Staff Daniel Koh on specifically identified dates. The request included text messages sent from any and all cell phones, smart phones, iPads, or other mobile devices used by Mayor Walsh and Mr. Koh as well as written correspondence between specifically identified phone numbers. The City's initial response dated July 31, 2015 and Attorney Albano's appeal In your initial response to Mr. Ryan dated July 31, 2015, you stated that the City is unable to provide the requested records for several reasons including the City's retention policies and its technical capacities related to storage and retrieval of text messages. AttorneyAlbano appealed this response on behalf of the Boston Globe and specifically requested this office to: 1) issue an order determining that text messages about city business are public records and 2) provide guidance to custodians concerning retention schedules with respect to text messages. Status of text messages under 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, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless ofp hysical 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Caroline Driscoll, Esq. SPR15/744 Page Two November 30, 2015 The statutory definition of "public records" does not distinguish between paper records and electronically stored information (ESI). G. L. c. 4, § 7(26). Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (access to a record requested pursuant to the Public Records Law rests on the content of the record). A records custodian is obligated to furnish copies of non-exempt portions of electronically stored information at the cost of reproduction, unless otherwise provided by law. The City is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Commissioner ofBoston, 378 Mass. 281, 289- 90 (1979). The City's supplemental response dated October 15, 2015 You provided a supplemental response in a letter to Attorney Albano dated October 15, 2015. In the October 15 letter, you state "the City has reviewed its procedures and is exploring a system to retain text messages and to provide such in the same manner as it does other records" but indicate this process is ongoing and has not been finalized. You also informed Attorney Albano that the City Law Department gave a presentation in conjunction with the City's Department oflnnovation and Technology (DolT) to remind department heads of their obligations as records custodians. This presentation included information about the City's requirements under the Public Records Law pertaining to email, Google Chat, and text messages. You provided a copy ofthis presentation with the October 15 letter to Attorney Albano. This presentation provides guidance to City employees on the public status of text messages as well as the manner in which they should be retained and kept on devices. Whereas the City has provided further information concerning its policies regarding text messages, I will consider this administrative appeal closed. cc: Mr. Jonathan M. Albano, Esq.