Brian Keaney v. Boston, City of - Mayor's Office (SPR 20160213)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 8, 2016 SPR16/213 Mr. George Bahnan Paralegal City of Boston Law Department City Hall, Room 615 Boston, MA 0221 0 Dear Mr. Bahnan: I have received the petition of Brian Keaney appealing the response of the City of Boston Mayor's Office (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Keaney requested "[a]ll text messages sent between Governor Charlie Baker and Mayor Martin Walsh since September 10, 2015." In your initial response, you indicated "[t]he [City] has determined it does not have any documents responsive to your request." Subsequently, you informed Mr. Keaney that "[t]he Mayor does not conduct substantive city business by text message and as I mentioned before, there were no text messages responsive to your request." Mr. Keaney appealed these responses, indicating he is seeking "all text messages between the Mayor and the Governor, regardless of content." In a conversation with an attorney on my staff, you indicated the City is willing to provide a supplemental response that seeks to clarifY the issues Mr. Keaney raises. The City is advised that 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). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(c); see also Dist. Attorney for the Norfolk OneAshhurton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. George Bahnan SPR16/213 Page2 April 8, 2016 Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). However, the City is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10 (a ); 32 Op. A tty Gen. 157, 165 (May 18, 1977). 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). Conclusion Whereas the City is willing to provide a supplemental response to the request that addresses the issues discussed above, I will consider this appeal closed with the proviso that the City provides such a response to Mr. Keaney within ten (1 0) days. This response must be provided in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Keaney a written explanation, with specificity, 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 copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf.

Mr. George Bahnan SPR16/213 Page 3 April 8, 2016 Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone num r provided in this determination for further information. cc: Mr. Brian Keaney