David E. Lurie v. Boston, City of - Public Records (SPR 20180800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15,2018 SPR181800 Shawn A. Williams, Esq. Director of Public Records - RAO City of Boston 1 City Hall Plaza, Room 61 5 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, § 10A; 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 appeals The requested records were the subject of a previous appeal. See SPR18/139 Determination of the Supervisor (February 14,2018 ); SPRl81435 Determination of the Supervisor (April 18,2018). In a January 24"' 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 than the press release that is on the City's website. In my April 18 thd etermination I found the City had 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 that the City had not met its burden of supporting its claim that there is no agency relationship between the Committee and the City. I ordered the City to provide Attorney Lurie with any records of the Committee in a manner consistent with the order, the Public Records Law and its Regulations. 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 June 15,2018 The City responded on May 4,201 8 by indicating "[alt this time no such records have been received by the City." Mr. Lurie appealed and SPR181800 was opened as a result. Current appeal In its May 4thr esponse the City asserts "there is no agency relationship between the committee and the City of Boston or the committee and the Mayor of Boston. As a result, the City has no records of the committee. Further, there are no responsive records in the custody of any City employee. In short, there are no records responsive to your request." The City provides information about the agency relationship and indicates since "the committee is not a 'public agent,' the City has no obligation to seek private records from private citizens who were not appointed, but were asked to provide guidance to the Mayor. The City has no records from this committee." You also note that "[iln preparing both the January 24 and March 22 letters to you I conducted a search and found that no City employee has any record responsive to your request. As of the date of this letter the same holds true; no City employee possesses any records that are responsive to your request." In his June 1,2018 correspondence Attorney Lurie asserts "[c]learly, documents in the possession of Brian Kelly, who was a lawyer for the City and consultant to the Committee, constitute 'documents concerning work performed by the Committee' responsive to this request." In a May 9,2018 letter Attorney Lurie argues "it is crystal clear that documents in the possession of Brian Kelly, attorney for the City and 'consultant' to the Committee, are public records within the control of the City that must be produced." The press release referenced in Attorney Lurie's request provides, in pertinent part: In addition, Attorney Brian Kelly, who reviewed the city's interaction with Top Chef and has continued to provide advice on policies and procedures, will serve as a consultant to the committee to ensure an ethical process for all event managers. The City must explain whether an agency relationship exists between the City and Attorney Kelly regarding the matter described in Attorney Lurie's request. See Fiftyone Hispanic Residents of Chelsea v. School Comm. 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). To the extent that an agency relationship exists, records made or received by Attorney Kelly related to this matter are subject to the Public Records Law. Bouaas v. Chief of Police of Lexington, 371 Mass. 59,64 (1 976) (access to a record requested pursuant to the Public Records Law rests on the content of the record). Conclusion Accordingly, the City is ordered to provide Attorney Lurie with a response in a manner consistent with this order, the Public Records Law and its Regulations within ten business days.

Shawn A. Williams, Esq, Page 3 June 15,2018 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David E. Lurie, Esq.