Colman Herman v. Redevelopment Authority (SPR 20160376)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 14, 2016 SPR16/376 Ms. Teresa Polhemus Executive Director/Secretary Boston Redevelopment Authority One City Hall Square Boston, MA 02201 Dear Ms. Polhemus: I have received the petition of Colman M. Herman appealing the response ofthe Boston Redevelopment Authority (BRA) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Herman requested "copies of the appraisals of the Winthrop Square Garage." In a response dated June 3, 2016, you denied his request, claiming that responsive records are exempt from disclosure under Exemption (i) of the Public Records Law. G. L. c. 4, § 7(26)(i). 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 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, § 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 ($1 0. 00), custodian of records shall OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Teresa Polhemus SPR16/376 Page2 June 14, 2016 provide written good faith estimate). Once fees are paid, a records custodian 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 records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Exemption (i) Exemption (i) applies to: appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired G.L. c. 4, §7(26)(i) (emphasis added) The purpose of Exemption (i) it to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent domain proceeding, the same degree of confidentiality that is afforded to private parties. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition of real property. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239, 241 (2004). The BRA claims the responsive records are exempt under Exemption (i) because "[p] ublic disclosure of appraisal information at this stage of the 115 Winthrop Square RFP process would impede the BRA's ability to negotiate a more competitive sale price." You also indicate "[ s] hould the BRA reach a final agreement with a prospective developer regarding disposition of the property, appraisal information will be a matter of public record." I find the BRA's June 3 response does not explain how responsive records fall under the conditions required for withholding pursuant to Exemption (i), particularly because the BRA cites its ability to competitively negotiate a sale price, not its ability to acquire property in support of its argument for non-disclosure. See Coleman, 61 Mass. App. Ct. at 241; see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed). As a result, I find the City has not met its burden to withhold the responsive records under Exemption (i).

Ms. Teresa Polhemus SPR16/376 Page 3 June 14, 2016 Order Accordingly, the BRA is hereby ordered to provide Mr. Herman a response to his request in a manner consistent with this order, the Public Records Law and plicable case law without delay. A copy of such a response must be provided to this office. is preferable to send an electronic copy of this response to this office at re te.ma. cc: Mr. Colman M. Herman