Pete Riesenberg v. Boston Planning & Development Agency (SPR 20171157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2017 SPR17/1157 Tammy Donovan Special Assistant to the Executive Director/Secretary Boston Planning & Development Agency 1 City Hall Square, Floor 9 Boston, MA 02201 Dear Ms. Donovan: 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, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Riesenberg requested "all addendum or addenda to the sublease between the Boston Center for the Arts ('Landlord') and Huntington Theatre Company ('Tenant') executed December 10, 2003." Mr. Riesenberg also requested "the modified agreement as executed and consented to by the Boston Redevelopment Authority in their letter of January 9, 2004, to the Boston Center for the Arts." Previous Appeal This requested record was the subject of a prior appeal. See SPR17/ 922 Determination of the Supervisor of Records (July 14, 2017). I closed the appeal with the proviso that the Agency provide Mr. Riesenberg with a supplemental response. Following the July 14th determination, the Agency provided a supplemental response to Mr. Riesenberg on July 27, 2017. Unsatisfied with the Agency's response, Mr. Riesenberg petitioned this Office and this appeal SPR17/ 1157, was opened as a result. 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, § lOA( 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). 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

Tammy Donovan SPR17/1157 Page 2 September 7, 2017 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(b)(iv); 950 C.M.R. 32.06(3); 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). 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, § 1O (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 July 21/z response In the Agency's July 2ih response, it indicated that "[t]he Boston Redevelopment Authority (''BRA"), as Landlord, and the Boston Center for the Arts, Inc. ("BCA"), as Tenant, entered into a lease Agreement dated May 16, 2002 (the "Lease") pertaining to the lease of the Theater in the Atelier/505 Condominium (the "Premises"). Section 5.1(a) of the Lease provides for the assignment of the Lease or sublet of the Premises. Section 5.1 (a) of the Lease specifically states that Landlord consent shall not be required for a long term lease of the Premises for a period of 35 years to the Huntington Theater Company or an affiliate thereof." The Agency also indicated that "[t]he BCA, as Landlord, and the Huntington Theatre Company, Inc., as Tenant, entered into a sublease ofthe Premises on December 10, 2003 (the "Sublease"). The Sublease contained a 46 year term, therefore, technically required the consent ofthe BRA. On December 11, 2003 the BCA submitted the sublease to the BRA for consent. By letter dated January 9, 2004, the BRA consented to the Sublease of the Premises to the Huntington Theatre Company for a term of 46 years." The Agency further indicated that "[s]ince the BRA's consent of January 9, 2004, the BCA has never submitted a new request for the BRA's consent indicating that any material change has been made to the Sublease and the BRA has not requested further records from the BCA in connection with the Sublease. Therefore, the BRA does not have any further records regarding your public records request." No duty to create a record In your July 27, 2017 response, you mentioned that "the BCA has never submitted a new request for the BRA's consent indicating that any material change has been made to the sublease and that the BRA has not requested further records from the BCA in connection with the sublease." Consequently, you do not possess records responsive to Mr. Riesenberg's request. 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) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, §

Tammy Donovan SPR17/1157 Page 3 September 7, 2017 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). Conclusion Accordingly, whereas the Agency has no responsive records, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Pete Riesenberg