Peter Reisenberg v. Boston Planning & Development Agency (SPR 20170924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 14, 2017 SPR17/924 Teresa Polhemus Executive Director/Secretary Boston Planning & Development Agency 1 City Hall Square, Floor 9 Boston, MA 02201 Dear Teresa Polhemus: I have received the petition of Peter Riesenberg appealing the response of the Boston Planning and Development Agency (Agency) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M:R. 32.08(1). Specifically, Mr. Riesenberg requested "statements required to be rendered by Article XV Landlord Leaseback And Loading Dock Access, ... in the sublease between the Boston Center for the Arts and Huntington Theatre Company, executed December 10, 2003." Mr. Riesenberg requested statements from June 30, 2004 to June 30, 2016. 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, § 10A(d); 950 C.M.R. 32.03(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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Agency's Aprilll" response In its April 11th response, the Agency indicated that "the BPDA has conducted a search for the requested documents and has no records responsive to the request in its possession to provide you." 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. However, One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Teresa Polhemus SPR17/924 Page 2 July 14, 2017 Article XV of the sublease agreement between the Boston Center for the Arts and the Huntington Theatre Company, section 15.4-Determination of Estimated Annual Operating Expenses and Additional or Refundable Rent, reads in pertinent part that the "[t]enant shall on June 30 of each calendar year render a statement to Landlord detailing the Estimated Annual Basic Rent and the Estimated Annual Operating Expenses for the forthcoming Lease Year .... " It is therefore unclear from the Agency's response how it does not possess such records. If the Agency maintains that it has no records responsive to Mr. Riesenberg's public records request, the Agency must give more information by explaining in writing its justification for not possessing the records. I understand a Public Records Division staff attorney contacted you about this appeal. Accordingly, whereas the Agency has indicated that it will provide Mr. Riesenberg with a supplemental response, I will consider this appeal closed if the Agency provides the response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office at pre@sec.state.ma.us. Mr. Riesenberg may appeal the substantive nature of the response within ninety days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Riesenberg