David E. Lurie v. Boston, City of - Public Records (SPR 20171325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 27, 2017 SPR17/1325 Shawn Williams, Esq. Director of Public Records Boston City Hall, Room 620 One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Attorney David E. Lurie appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Lurie requested various emails, text messages, instant messages, and documents regarding City employees. Attorney Shawn Williams responded to his request, indicating the City's intention to search for responsive records. 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). 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 O(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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Shawn Williams, Esq. SPRl 7/1325 Page2 September 27, 2017 Custodian Response to Requests for Records If the magnitude or difficulty of the request, or of multiple requests from the same requestor, unduly burdens the other responsibilities of the municipality such that the municipality is unable to permit inspection or furnish a copy of a requested record within the established timeframe, the municipality shall inform the requestor in writing not later than 10 business days after the initial receipt of the request for public records. G. L. c. 66, § 1 O(b ); see G. L. c. 66, § 10(a ) ( a records access officer shall permit inspection or furnish a copy of any public record not later than 10 business days following receipt of the request). Included in this written response, a municipality shall: identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; G.L. c. 66, § lO(b)(v). The City's September 11th response states " [a] response to a public records request must be provided within ten (10) business days from the business day a written request was received," and additionally states "[i]t is expected that all public records responsive to a request will be provided within twenty-five business days from the business day a written request was received." Further, the City indicates it "will begin the search to determine what records exist that are responsive to [Attorney Lurie's] request." However, it is unclear when the City intends on providing the responsive records. If the City intends on providing the responsive records beyond · ten business days, but within twenty-five business days, it is unclear how the September 11th response is in compliance with above referenced statute. Therefore, I find the City must clarify when it intends on providing the responsive records to Attorney Lurie. See G. L. c. 66, § lO(a-b). Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the City intends to provide Attorney Lurie with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the City provides a 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. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Lurie may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1).

Shawn Williams, Esq. SPRI 7/1325 Page 3 September 27, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: David E. Lurie, Esq.