Sam Feigenbaum v. Boston, City of - Police Department (SPR 20190076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 29, 2019 SPR19/0076 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Samuel Feigenbaum 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, Mr. Feigenbaum made two separate requests for records on October 16, 2018 and October 29, 2018. Mr. Feigenbaum requested the following records: 1. "All contracts entered into by the City of Boston after the effective date of the Diesel Emissions Reduction Ordinance ('DERO') for construction projects and other projects and services having a total estimated cost in excess of two million ($2,000,000.00) dollars adjusted annually to reflect changes in the Consumer Price Index." Also, "[a]ny and all documents attached to any of these contracts intended [to] show compliance with the provisions of section (e) of DERO." 2. "Individualized documentation for each and every on-road vehicle, non-road vehicle, and piece of diesel equipment as defined under section (b) of the Diesel Emissions Reduction Ordinance ('DERO') showing compliance with, failure to comply with, or exemption from section (d) ofDERO, which provides that ' [a ]11 on-road vehicles, non-road vehicles, and diesel equipment owned, leased, or operated by the City of Boston shall' meet certain fuel and emissions requirements." Previous appeal The requested record was the subject of a previous appeal. See SPRl 8/1729 Determination of the Supervisor of Records (December 4, 2018). I closed SPRl 8/1729 by encouraging the City and Mr. Feigenbaum to continue to communicate to enable the City to provide public records. Following the December 4th determination and having received no 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. SPR19/0076 Page 2 January 29, 2019 responsive records from the City, Mr. Feigenbaum petitioned this office and this appeal, SPR19/0076, was opened as a result. 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). 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); 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, § 1O (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 November 19th response In its November 19, 2018 response, the City explains that Mr. Feigenbaum "seeks ... copies of City contracts that contain certain clauses on a particular topic [a nd] ... that it is not possible to review every single City contract to see if the terms exist. This would be conducting research and that is not required under the law." The City further explains that "[t]he records [Mr. Feigenbaum] seeks are not sorted in a manner that would make them readily available. A hand review of thousands of contract files would be required, including a review of the language of each of those contracts, to determine whether the clause [Mr. Feigenbaum] references exists within that contract. The position of the City of Boston is that it is not required to conduct research in response to a request. ..." Based on the City's response, it is unclear how reviewing the contract files "to determine whether the clause [Mr. Feigenbaum] references exists within that contract," would require the City to conduct research. Pursuant to the Public Records Law, search time is defined as "[t]he time needed to locate and identify, pull from the files, copy and reshelve or refile a public record." 950 C.M.R. 32.02. Accordingly, it is unclear why reviewing the records to determine which contracts are responsive to Mr. Feigenbaum's request constitutes research. The City must clarify this matter.

Shawn A. Williams, Esq. SPR19/0076 Page 3 January 29, 2019 Modification of request In its November 19th response, the City states that it asked Mr. Feigenbaum to" ... narrow his request or otherwise provide information that would assist in [the City's] review of records to determine whether any responsive record exists; he declined this request." A municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably. See G. L. c. 66, § lO(b)(vii). It should be noted that the request must reasonably describe the record being sought. G. L. c. 66, § lO(a)(i). Accordingly, this office encourages Mr. Feigenbaum and the City to communicate further to enable the City to provide the requested public records sought. 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. Feigenbaum 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: Samuel Feigenbaum