Cohn, Jonathan v. Redevelopment Authority (SPR 20150795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 15,2015 SPRlS/795 Ms. Teresa Polhemus Executive Director BRA/EDIC One City Hall Square Boston, MA 02201 Dear Ms. Polhemus: I have received the petition of Jonathan Cohn appealing the response of the City of Boston-Redevelopment Authority (Authority) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in a request dated July 2, 2015, Mr. Cohn requested records concerning a specifically identified individual. The Authority provided responsive records, but withheld others pursuant to the attorney client privilege. Mr. Cohn requested that the Authority create a custodial or privilege log related to this response, detailing the withheld communications. The Authority declined this request. The sole question in Mr. Cohn's September 26, 2015 petition to this office is whether a records custodian is required to provide such a log to a requester to support a denial of access under the Public Records Law. This question was previously raised in another public records appeal. See SPR15/556 Determination ofthe Supervisor of Records (October 5, 2015). Only the Supervisor of Records (Supervisor) may require a custodian to compile an index of requested records; this order is made by the Supervisor to aid in review of a public records appeal. The determination as to whether to order an index lies solely in the hands of the Supervisor. 950 C.M.R. 32.08(7). The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. Accordingly, whereas a requester may not compel a custodian to create a record, further, whereas only the Supervisor of Records may compel a custodian to create a custodial index, and OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Teresa Polhemus SPR15/795 Page Two December 15, 2015 whereas there is no record responsive to Mr. Cohn's request, I hereby find the Authority acted properly in its responses. This Authority is reminded, however, that in a denial of access to public records a custodian must provide a written explanation, with specificity, and how a particular exemption applies to each record. 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. a Supervisor of Records cc: Mr. Jonathan Cohn Mr. Sean Nehill, Esq.