David E. Lurie v. City of Boston - Property Management Department (SPR 20180139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14,201 8 SPR181139 Shawn A. Williams, Esq. Director of Public Records - RAO City of Boston 1 City Hall Plaza, Room 6 15 Boston, MA 02201 Dear Attorney Williams: I have received the petition of David E. Lurie, Esq. of Lurie Friedman, LLP appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Lurie requested a copy of: All documents concerning work performed by the committee (Committee) appointed by Mayor Walsh to review the City's Office of Tourism, Sports and Entertainment as described in an April 28,2016 press release and news articles, including minutes; summaries of all Committee meeting; any calendar or schedules reflecting Committee meetings; draft reports or other materials generated by the Committee; any materials provided to the Committee by the City or third parties; and any emails among or between the Committee members concerning Committee work. The City's January 2dthr esponse In a January 24th response, the City indicated that it has no records responsive to the request, and that no final report has been issued to the City. The City's response also states, "the members of the Committee are not employees of the City; no meetings were held in a City building." On January 25th,A ttorney Lurie emailed you asking whether the Committee ever met, and that you direct him to any authority in support of the City's position that the Committeelpanel members are not within the control of the Mayor. Further, Attorney Lurie contends, "[ilt strains creditability that there are no documents in the City's possession regarding the formation or work of this Committee which was appointed by the Mayor and publicized heavily." 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. Page 2 February 14,2018 In a January 25,201 8 email, you indicated that you would inquire into Attorney Lurie's outstanding questions. When he did not receive any further response, Attorney Lurie petitioned this office, and an appeal was opened. 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, fj 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, 5 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, 5 10(d)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). Access to public records The parties involved in this matter are advised that public records must be maintained and ' kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, 5 10(ii) (custodian must provide records within its possession, custody or control); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289-90 (1979). Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. It should be noted that the Public Records Law requires a record custodian to take steps to acquire those records of which he is entitled to and which are not in his possession. See G. L. c. 66, 5 13 (whoever is entitled to the custody of public records shall demand the same from person having possession of them). Therefore, it is the City's responsibility to acquire the records. Furthermore, public officers have a duty to provide any public records in their possession to the City. See id. Order Accordingly, the City is ordered to clarify whether responsive records exist and provide Attorney Lurie with any existing responsive records in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Shawn A. Williams, Esq. Page 3 February 14,201 8 Sincerely, Rebecca S . Murray C/ Supervisor of Records cc: David E. Lurie, Esq.