John A. Hawkinson v. Cambridge, City of - Law Department (SPR 20181664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 27,2018 SPR1811664 Paul S. Kawai, Esq. City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Attorney Kawai: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 24,201 8 Mr. Hawkinson requested ". . . the list of issued building permits in Viewpoint from June 1,201 8 to present, in whatever form is convenient and expeditious? Something approximating the same report in Energov would be great." He also requested that the City ". . . furnish more extended ancillary data about such permits, such as their Description fields, allowing me to understand what the purpose of the permit is?" Having not received a substantive response, Mr. Hawkinson appealed. 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, 5 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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. Appeal In his appeal petition Mr. Hawkinson indicates that the City orally acknowledged receipt One Ashburton Place, Room 1719, Boston, Massachusetts 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Paul S. Kawai, Esq. Page 2 November 27,20 18 of the request, but had yet to provide him a substantive response. He asks this office to ". . . order Cambridge's timely response and to remind Cambridge that no specific form is required for public records requests and that they may be submitted through a records custodian (i.e. they need not be submitted through the Records Access Officer)." Subsequent to the opening of the appeal, Mr. Hawkinson notified this office that "[oln Tuesday I received a partial response to one of the two parts of the request covered by this appeal. That partial response is quite substantive, but it is not satisfactory, and the City has not responded to a followup inquiry regarding the missing portion." He also noted that the City had yet to provide records responsive to the second request, nor did it provide a timeline for production. The City provided a response to this office on November 20,201 8, to which Mr. Hawkinson was copied, in which you explain the City provided records responsive to the first request. You also indicate that with respect to the second request, ". . . the City is currently diligently working on responding to such request." In a November 2 1,201 8 email Mr. Hawkinson asserts that "[tlhe City's response to the first request, while substantive, is not yet satisfactory, because it omitted without explanation the requested Viewpoint permits from June 1 to June 30: it began on July 3 ." He also explains that he has yet to receive records responsive to the second request. Response under G. L. c. 66, $lo@); existence of additional records G. L. c. 66, $ 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. The City must identify a reasonable timeframe in which it shall produce records responsive to the second request in accordance with the above provisions of G. L. c. 66, 5 1O (b)(vi); see also G. L. c. 66, 5 10(c) (an agency or municipality may petition the Supervisor of Records for additional time if it is unable to complete the request within the time provided in G.

Paul S. Kawai, Esq. Page 3 November 27,2018 The City must also confirm whether it possesses any additional records responsive to the first request. 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. G. L. c. 66, fj 10(a)(ii), (b)(ii). It should also be noted that a records custodian shall not require a particular form be used by requestors, although it may make forms available for requestors to use. 950 C.M.R. 32.06(1)(d). Conclusion Accordingly, the City is ordered to provide Mr. Hawkinson a response to the requests in a manner consistent with this order, the Public Records Law, and its Regulations without delay. 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 g/ Supervisor of Records cc: John Hawltinson