Friedrich Lu v. Boston Planning & Development Agency (SPR 20191019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/1019 Ms. Teresa Polhemus Boston Planning & Development Agency 1 City Hall Square, Floor 9 Boston, MA 02201 Dear Ms. Teresa Polhemus: I have received the petition of Mr. Friedrich Lu appealing the response of the Boston Planning and Development Agency (Agency) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Lu requested"[o nline] a permanent (ie, not transient) copy of an agreement, contract, license, authorization understanding between BPDA and Simon Property Group, Inc (which owns and operates Copley Place, among others) regarding ground work, maintenance, and/or removal of trash/material of the part of Southwest Corridor (from across Dartmouth Street to Harcourt Street) -- in writing or orally (if the latter, state between whom on each side) that is currently valid as well as how long the above mentioned relationship first started and/or has continued." On May 7, 2019, the Agency responded to Mr. Lu's request, providing him with responsive records. In his appeal, Mr. Lu claims that none of the documents provided "contained the information [he is] interested in," and that the Agency "must have some documents pertaining to [his] interest." This case, SPR19/1019 was opened as a result. 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, § 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 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

Ms. Teresa Polhemus SPR19/1019 Page 2 June 4, 2019 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. Existence ofr esponsive 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). In addition, G. L. c. 66, § 6A(d) provides in pertinent part "[i]f the public record requested is available on a public website pursuant to subsection (b) of section 19 of this chapter, section 14C of chapter 7 or any other appropriately indexed and searchable public website, the records access officer may furnish the public record by providing reasonable assistance in locating the requested record on the public website." The Agency's May 23rd Response On May 23, 2019, subsequent to the opening of this appeal, the Agency provided a supplemental response, indicating that they "have shared all documents that [they] have in [their] possession." The Agency further indicated that they "do not have an agreement regarding the maintenance of the Southwest Corridor." They also noted that the Massachusetts Department of Transportation may possess the records Mr. Lu was seeking. On June 3, 2019, the Agency further indicated that they had "called back from the archives all of the relevant boxes to look for responsive documents" and "didn't find anything more than [had] already been shared." Conclusion Accordingly, whereas the Agency does not possess additional records responsive to Mr. Lu's request, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mr. Friedrich Lu