David E. Lurie v. City of Boston - Property Management Department (SPR 20180435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 18, 2018 SPRlS/435 Shawn A. Williams, Esq. Director of Public Records - RAO City of Boston 1 City Hall Plaza, Room 615 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, § 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 appointed by Mayor Walsh to review the City's Office of Tourism, Sports and Entertainment (Committee) as described in an April 28, 2016 press release and a Boston Globe news article, including without limitation any minutes or summaries of any Committee meetings; any calendar or schedule reflecting Committee meetings; draft reports or other materials generated by the Committee by the City of Boston or third parties; and any emails among or between the Committee members concerning Committee work. Previous appeal The requested records were the subject of a previous appeal. In its January 24th response, the City indicated that the members of the Committee are not employees of the City and no meetings were held in a City building. Further, the City informed Attorney Lurie that it has no records responsive to his request other the press release that is on the City's website. See SPR18/139 Determination of the Supervisor (Supervisor) (February 14, 2018). In my February 14th determination, I advised the City 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, § 1O (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 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. SPR18/435 Page2 April 18, 2018 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. 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, § 13 (whoever is entitled to the custody of public records shall demand the same from person having possession of them). Accordingly, on February 14th, I ordered the City to clarify whether responsive records of the Committee exist and provide Attorney Lurie with any existing responsive records. On March 22nct, the City provided another response to Attorney Lurie, claiming that the Committee has issued no findings to any City employee, and no City employee possesses records regarding the Committee. As result, Attorney Lurie petitioned the Supervisor, and the current 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, § IOA(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, § IO(b)(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 exemption or exemptions upon which the withholding is based ... "); 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). The City's March 22nd response In its March 22nd response, the City contends, as it did in its January 24th response, that it has no records responsive to Attorney Lurie's request. Furthermore, you informed Attorney Lurie that: "[t]he Committee is not a department or other instrumentality of the City. The Mayor delegated no powers to the Committee. The Committee is merely an independent group asked to comment on a particular issue. Any records created by the Committee are the records of private citizens. The Committee has issued no findings to any City employee. No City employee possesses records regarding the Committee other than the press release to which you already have access. There are no records responsive to your request."

Shawn A. Williams, Esq. SPR18/435 Page 3 April 18, 2018 Agency relationship In its March 22nd supplemental response to Attorney Lurie, the City explained that the Mayor did not delegate any powers to the Committee, that the Committee is independent of the City, and that it is only asked to comment on a particular issue. Therefore, the City reiterates that it does not possess records responsive to this request. In his January 31st petition to the Supervisor, Attorney Lurie contended that after the City's press release announced the formation, purpose and composition of the Committee, the press office confirmed that the Committee would be reviewing the Tourism Office, including its handling of the Boston Calling concert. In his April 4th petition, Attorney Lurie continues to claim that, "[i]t is inconceivable that there are no responsive public records for a 'city review committee' that was created two years ago and that the City maintains that it continues to look at the procedures and policies of the Tourism and Special Events office." Under the Public Records Law, the City is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § 6A(d); 32 Op. Atty. Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records 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. 66, § lO(a)(ii). However, the City is advised that no government entity may circumvent the Public Records Law by shifting responsibility to a third-party and then claiming that any records that may be created by, or are in the control of, a third-party are not records of the government entity. It is unclear how the Committee, appointed by the Mayor to advise the City on a particular issue with one of the City's offices, is not operating in an agency relationship with the City. See Fifty one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607-08 (1996) ( discussing agency relationship between a public and private entity within the context of the Public Records Law). I find that the City has not met its burden of supporting its claim that any records in the custody of the Committee are not public records subject to disclosure, and I find that the City has not met its burden of supporting its claim that there is no agency relationship between the Committee and the City. Order Accordingly, the City is hereby ordered to provide Attorney Lurie with any records of the Committee 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. The City may request reconsideration of this determination within 10 business days of the date of this letter.

Shawn A. Williams, Esq. SPR18/435 Page 4 April 18, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: David E. Lurie, Esq.