Vic Anderson v. Boston, City of - Public Records (SPR 20200564)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 3, 2020 SPR20/0564 Shawn A. Williams, Esq. City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Vic Anderson 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, on September 24, 2019, Mr. Anderson requested the following records within the possession of the City: • Correspondences to, from, copying and/or referencing John Gorman and/or Doug Anderson, including correspondences to, from and copying Attorney Edward Coburn from January 1, 2015 forward • Copies of all ISD, Landmarks, and BHAC permits, applications, approvals, plans, records, reports and other documents or instruments referencing John Gorman and/or Doug Anderson. Previous Appeal This request is the subject of a previous appeal, SPR20/0232. See SPR20/0232 Determination of the Supervisor of Records (February 24, 2020). In my February 24, 2020 Determination, I learned that the City intends on providing a response to Mr. Anderson’s request. The City on March 20th provided Mr. Anderson a response with respect to his request. With respect to the City’s response dated March 20th, Mr. Anderson claims there are “dozens of responsive emails missing that match the query terms you (City) used.” Unsatisfied with the March 20th response provided by the City, Mr. Anderson petitioned this office and this appeal, SPR20/0564, was opened as a result. 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. SPR20/0564 Page 2 April 3, 2020 Current Appeal Both the City and Mr. Anderson agreed upon 6 specific search terms in an email dated February 7th. According to the City on February 7th, “I did run these 6 searches…there are over 3,000 emails.” However, the City in a further response dated March 23rd, states that the “3,000 emails were generated prior to utilizing the agreed-upon search terms…the yielded records were provided to Mr. Anderson after utilizing the search terms.” The City on March 20th provided Mr. Anderson 120 emails after reviewing the specific search terms. Mr. Anderson contends that the emails provided “do not match the search terms we agreed to.” It is unclear whether the search terms the City and Mr. Anderson agreed upon on February 7th would have generated the responsive records. Records in Existence 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, § 10(a)(ii). In light of the issues raised in Mr. Anderson‘s appeal regarding the existence of responsive records, and despite the City’s responses, I find it is unclear whether additional responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). If such records were destroyed, the City must demonstrate whether it followed proper records retention protocol. Please note, the City must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the City to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Based on Mr. Anderson’s appeal and the City’s responses, it is unclear whether a) responsive records exist within the possession of the City and b) the agreed-upon search terms would have formulated the responsive records. The City must clarify these matters. Conclusion Accordingly, the City is to provide Mr. Anderson with a response as soon as practicable. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Anderson may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Shawn A. Williams, Esq. SPR20/0564 Page 3 April 3, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Vic Anderson