John Hawkinson v. Cambridge, City of - Office of the City Clerk (SPR 20212012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 23, 2021 SPR21/2021 Seah Levy Public Records Access Officer Law Department Cambridge City Hall 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2021, Mr. Hawkinson requested “statistics of response times for public records requests from January 1, 2019 to present.” Previous Appeal This request was the subject of a previous appeal. See SPR21/1861 Supervisor of Records Determination (August 6, 2021). The City provided a response to Mr. Hawkinson on August 6, 2021. Unsatisfied with the City’s response, Mr. Hawkinson petitioned this office and this appeal, SPR21/2012, 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, § 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 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

Seah Levy, RAO SPR21/2010 Page 2 August 23, 2021 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. The City’s August 6th Response The City’s August 6, 2021 response provided records and indicated, “these records are being produced electronically, pursuant to 950 CMR § 32.07(2)(m), there will be no charge for responding to this public records request.” In Mr. Hawkinson’s appeal to this office, he stated, “[a]verages of times between requests and their responses are not an adequate response to the request.” Mr. Hawkinson explained “a time‐series plot is not an adequate substitute for the underlying raw data, although with manual labor of course I can transform it back into that data. So the City's noncompliance on that front is reparable, although still undesired.” 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). If the City does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Mr. Hawkinson regarding the existence of responsive records, I find it is unclear whether additional responsive records exist. The City must clarify this matter. This office continues to encourage Mr. Hawkinson and the City to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (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). Conclusion Accordingly, the City is ordered to provide Mr. Hawkinson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Seah Levy, RAO SPR21/2010 Page 3 August 23, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: John Hawkinson