Todd Wallack v. Boston, City of - Mayor's Office (SPR 20181235)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 28, 2018 SPRlS/1235 Laura Oggeri City of Boston - Mayor's Office One City Hall Square, Suite 500 Boston, MA 02201 Dear Ms. Oggeri: I have received the petition of Todd Wallack 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, on June 11, 2018, Mr. Wallack requested "the last three-work related text messages sent or received by Mayor Walsh on either his personal or city mobile device." Mr. Wallack also informed the City that he is not seeking any purely personal messages that may have been sent to the Mayor's family or friends. Previous appeal This request was the subject of a previous appeal. See SPRI 8/989 Determination of the Supervisor of Records (July 19, 2018). In my July 19th determination, I ordered the City to provide Mr. Wallack with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the July 19th determination, the City provided a response on August 7, 2018, which included responsive records. Unsatisfied with the City's response, Mr. Wallack petitioned this office and this appeal, SPR18/1235, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on August 15, 2018. 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). 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

Laura Oggeri SPR18/1235 Page2 August 27, 2018 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, § lO(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. The City's August 71t response In its August 7, 2018 response, the City indicates that it is providing responsive records and that no records were withheld or redacted. In his petition for appeal, Mr. Wallack claims he "doesn't believe the City provided the three most recent texts. I understand Mayor Walsh typically uses his phones to text with reporters and city employees .... I understand Mayor Walsh typically uses his phones to text with reporters, colleagues, and others regarding city business on a daily basis .... It is possible the City did not search Mayor Walsh's personal phone ..." Responding to the claims made in Mr. Wallack's appeal, the City in its August 15, 2018 supplemental response asserts that the records provided to Mr. Wallack are" ... the three most recent text messages on Mayor Walsh's work cell phone. There are no other records responsive to Mr. Wallack's request, and no records were withheld or redacted." The City contends that "[t]he majority of Mayor Walsh's communications are done in-person or by speaking on the phone. Additionally, Mayor Walsh does not make official decisions or conduct substantive city business through text message." The City further contends that any text messages from Mayor Walsh's personal cellphone "is a violation of his private life ... and are not subject to disclosure under the public records law as they are the private personal property of Mayor Walsh in his capacity as a private citizen. ... " Mr. Wallack further claims that he's been told "that Mayor Walsh does indeed use his cell phone to correspond regarding official City business, including texts with reporters and city employees. Indeed, I understand he primarily uses his personal cell phone, rather than a city device." Status as a public employee The City is reminded that the definition of a "public record" in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition

Laura Oggeri SPR18/1235 Page 3 August 27, 2018 does not distinguish between records. Rather the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." Further, a public employee has a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985). Consequently, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official respdnsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,309 (1987). 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 "the three most recent text messages on Mayor Walsh's work cell phone," based on the City's responses, together with Mr. Wallack's claims in his appeal, it is unclear whether the City possesses additional responsive records. Particularly, it is uncertain if Mayor Walsh sent or received work-related messages on his personal cell phone. The City must clarify this matter. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to provide Mr. Wallack with a response to the request, provided 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack