Andrew Ryan v. Boston, City of - Mayor's Office (SPR 20160245)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords --------------------------------------------Anriwl~2~2,~2~0Hln6-----------------------------­ SPR16/245 Ms. Laura Oggeri Chief Communications Officer Office of Mayor Martin J. Walsh One City Hall Square-Suite 500 Boston, MA 02201 Dear Ms. Oggeri: I have received the petition of Andrew Ryan of The Boston Globe appealing the response of 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, Mr. Ryan requested copies ofrecords received from and provided to the U.S. Attorney's Office since January 6, 2014. The City provided multiple responses in which it denied access to these records and Mr. Ryan appealed to this office. 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). 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, § 1 0(c ); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Responses datedAprilll, 2016 andApril20, 2016 The City initially responded to Mr. Ryan's request on April1, 2016 by stating "[i]fthe [C]ity were to receive a subpoena from law enforcement and provide information, including memos, letters, records, interviews or other documents, we would be requested by law enforcement to keep it confidential to preserve the integrity of their investigation." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Laura Oggeri SPR16/245 Page2 April 22, 2016 In a supplemental response dated April20, 2016, the City claims it may withhold responsive records under Exemption (f) ofthe Public Records Law because "it is likely that even disclosure of the [C]ity's compliance could interfere with an investigation." G. L. c. 4, § 7(26)(f). You further explain "we do not believe that it would ever be in the public interest to disclose the existence of a subpoena if law enforcement has requested that the [C]ity keep it -----eenticlenti-aF-'-antl-'-'ft-]-e-the-e-xtent-that--a:ny-doetmrent-s-woul:d-be-compHed-tu-assist-t~--------­ enforcement, such documents may be further exempt under [E]xemptions (a) and (c), or others." You also recommended that Mr. Ryan contact law enforcement to obtain any copies of the documents that he is seeking. Unclear if the City possesses responsive records Based on the City's responses, it is unclear if it possesses any records responsive to Mr. Ryan's request. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course ofher duties has access to or control over records). I understand an attorney on my staff contacted the City about this matter. Applicability ofE xemptions Due to ambiguity regarding the existence of responsive records, I find the City has not met its burden to withhold responsive records, if any, under Exemption (f). It is unclear what type of records would be withheld and how disclosure could alert suspects to the activities of investigative officials, reveal confidential investigative techniques, or disclose the identities of voluntary witnesses, informants or complainants. Therefore, it is unclear how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). See Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.l8 (1979); Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). The City also cites G. L. c. 268A, § 23(c)(2) in support of its position; however, I find the City has not met its burden to explain the applicability of this statute to all responsive records, if any. Conclusion Accordingly, the City is hereby ordered, within ten (1 0) days of this order, to provide Mr. Ryan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. The response must contain a statement as to whether the City possesses any responsive records. If the City maiotains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Ryan a written explanation, with specificity, how a particular exemption applies to each record. To meet the

Ms. Laura Oggeri SPR16/245 Page 3 April22, 2016 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 of this response to this office at pre@sec.state.ma.us. ----------JI-+f4tthere-are-any-fees-associated-with-this-respunse-awritten;-goud--£aith-e-strmateliiust 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 of records 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. 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 record custodian in person to conduct training workshops on the Public Records Law upon req st. Please contact my office directly at the telephone number provided in this determ· f on£ r further information. cc: Mr. Andrew Ryan Ms. Caroline 0. Driscoll, Esq.