Cohn, Jonathan v. Boston, City of - Mayor's Office (SPR 20150796)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 15, 2015 SPRlS/796 Ms. Caroline 0. Driscoll, Esq. Assistant Corporation Counsel City of Boston - Law Department City Hall, Room 615 Boston, MA 02201 Dear Attorney Driscoll: I have received the petition of Jonathan Cohn appealing the response of the City of Boston (City) 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 June 4, 2015, Mr. Cohn requested copies of records relating to Boston's 2024 Summer Olympics bid. The City provided responsive records, but withheld others pursuant to the attorney client privilege. Mr. Cohn requested that the City create a custodial or privilege log related to this response, detailing the withheld communications. The City declined this request. The sole question in Mr. Cohn's September 30, 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Caroline 0. Driscoll, Esq. SPR15/796 Page Two December 15, 2015 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 whereas there is no record responsive to Mr. Cohn's request, I hereby find the City acted properly in its responses. This City 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. 1tfiams Supervisor of Records cc: Mr. Jonathan Cohn