Pete Riesenberg v. Boston Planning & Development Agency (SPR 20171164)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 7, 2017 SPR17/1164 Teresa Polhemus Executive Director/Secretary Boston Planning & Development Agency 1 City Hall Square, Floor 9 Boston, MA 02201 Dear Ms. 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, § lOA; 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. Previous Appeal This requested record was the subject of a prior appeal. See SPR17/ 924 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 19, 2017. Unsatisfied with the Agency's response, Mr. Riesenberg petitioned this Office and this appeal SPR17/1164, 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, § 1O A( 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). 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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 SPR17/1164 Page2 September 7, 2017 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 l'l11 response In the Agency's July 19th response, it indicated that "[w]ith regard to the request for 'statements required to be rendered by Article XV Landlord Leaseback and Loading Dock access in the [Sublease,' Section 15.4 of the Sublease entitled 'Determination of Estimated Annual Operating Expenses and Additional or Refundable Rent' states that the 'Tenant [i.e., Huntington Theatre Company, Inc.] shall on June 30 of each calendar year render a statement to Landlord [i.e. the Boston Center for the Arts, Inc.] detailing the Estimated Annual Basic Rent and the Estimated Annual Operating Expenses for the forthcoming Lease year." The Agency further indicated that "[t]he Sublease does not require those statements to be submitted to the BRA. Therefore, the BRA does not have any statements required to be rendered by Article XV of the Sublease." No duty to create a record In your July 17, 2017 response, you mentioned that the Sublease does not require the annual expense statements to be submitted to the BRA because it applies to the Landlord, the Boston Center for the Arts, Inc. and the Tenant, in this case, the Huntington Theatre Company, Inc. Therefore, you do not possess documents 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 ofthe custodian of records at the time ofthe 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, § lO(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.

Teresa Polhemus SPR1711164 Page 3 September 7, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor ofRecords cc: Pete Riesenberg