Casley Bailey v. Boston Fire Department (SPR 20210400)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2021 SPR21/0400 Lisa S. Maki, Esq. Legal Advisor Boston Fire Department 115 Southampton Street Boston, MA 02118 Dear Attorney Maki: I have received the petition of Casley Bailey appealing the response of the Boston Fire Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 19, 2021, Mr. Bailey requested various records, including, “all incoming and outgoing calls to and from [an identified phone number] on December 2, 2020, and December 10, 2020.” The Department responded on February 3, 2021, providing responsive records of long-distance calls, indicating that records of local calls do not exist. Unsatisfied with the Department’s response, Mr. Bailey appealed to this office. 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, § 10A(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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Lisa S. Maki, Esq. SPR21/0400 Page 2 March 1, 2021 Current Appeal In its February 3, 2021, response, the Department indicates “the City of Boston does not record a log of local incoming and outgoing phone calls.” On February 12, 2021 the Department provided a further response to Mr. Baily stating “the Department does not capture local calls. To the extent that there are calls that are not listed, those calls were not captured because the City does not capture them.” In his appeal petition, Mr. Bailey contends that he has not been provided with a complete record of calls to and from the identified phone number. He explains that while the call log he received contains only nine calls, the bottom of the log shows a total of eighteen calls, and that his discussion with a Verizon technician indicated “all outgoing and incoming calls have a log, especially to a government building.” Subsequent to the intervention by a staff attorney of the Public Records Division, I learned that the Department does not possess any additional records responsive to Mr. Bailey’s request. In an email to this office on February 24, 2021, the Department states “[t]he City utilizes Verizon as its telephone service provider. Verizon has advised the City in response to this request that it does not capture local calls. Only regional outbound toll calls can be captured. The regional outbound calls were provided to the requestor for the dates requested.” No Duty to Create Records Under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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). Conclusion Whereas the Department does not possess additional records responsive to Mr. Bailey’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Casley Bailey