Diego Ibarguen, Esq. v. City of Boston - Property Management Department (SPR 20171734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 2, 2018 SPR17/1734 Shawn A. Williams, Esq. Director of Public Records/Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Diego Ibarguen, Esq. on behalf of Kathy Curran, both of WCVB-TV, appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on June 13, 2017, Kathy Curran requested the following categories of records: " Records or data reflecting original estimated cost, cost to date and projected cost of the Connect Historic Boston cycle tracks project in the North End. Funding sources and dollar amounts received for the Connect Historic cycle tracks project. Copies of records or data regarding complaints concerning the Connect Historic cycle tracks project. Cost of repair or repoint the brick on the sidewalk along Atlantic A venue in the area of the current cycle tracks project since 2012 broken down by year. Copies of emails to or from project managers of the Historic cycle tracks project in the North End concerning design flaws." The City provided a response including a fee estimate on June 21, 2017 and provided responsive records on September 22, 2017. Attorney Ibarguen contends that the records provided were not responsive to the third, fourth, and fifth requests and petitioned this office. SPR 17 /1734 was opened as a result. Procedure for appeals A review of the petition Attorney Ibarguen filed with the Supervisor of Records (Supervisor) reveals that Attorney Ibarguen did not provide a copy of the petition to the City's records access officer. Attorney Ibarguen is reminded that "in petitioning the Supervisor, the 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 A. Williams, Esq. SPRl 7/1734 Page 2 January 2, 2018 requester shall provide a copy of such petition to the records access officer associated with such petition." 950 C.M.R. 32.08(1)(h). A copy of the file was provided to the City. 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, § 1O (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. Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c.66, § lO(a)(ii). Although the City provided responsive records, Attorney Ibarguen claims the records were not sufficiently responsive to the requests. Subsequent to the opening of this appeal, I learned that on December 19, 2017, the City provided Ms. Curran with the remaining responsive records pertaining to this request and that there are no other responsive records in existence. Conclusion Accordingly, whereas this appeal was opened based on the City's failure to provide responsive records for request numbers three, four, and five, I will now consider this administrative appeal closed. Attorney Ibarguen may appeal the substantive nature of the City's response within ninety calendar days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPRl 7/1734 Page 3 January 2, 2018 Sincerely, ~.~ Supervisor of Records cc: Diego Ibarguen, Esq.