California PRA v. Boston, City of - Public Records (SPR 20212323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2021 SPR21/2323 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 California PRA 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). On April 5, 2021, California PRA requested various categories of records relating to Mayor Kim Janey in her capacity as a Mayor and City Council President. Previous Appeal This request was the subject of a previous appeal. See SPR21/1420 Supervisor of Records Determination (June 15, 2021). In my June 15th determination, I ordered the City to provide California PRA with a response to the request. Subsequently, on August 31, 2021, the City provided numerous records in redacted form, and on September 7, 2021, provided an additional written response. Unsatisfied with the City’s response, California PRA appealed, and this case 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 agency or municipality 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 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. SPR21/2323 Page 2 September 24, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In the appeal petition, California PRA contends that the City “failed to disclose Ms. Janey’s calendars for between November 3, 2020 and January 1, 2021” and argues that the City “disclosed no calendar records prior to January 1, 2021 and provided no explanation as to why.” California PRA further contends that the City “failed to provide any records for the period from November 3, 2020 to January 1, 2021.” Additionally, California PRA contends that the City “failed to disclose records of phone calls by Council President Kim Janey and acting Mayor Kim Janey,” and further argues that “the records are at times vague, suggesting calls were made, but do not indicate to whom Ms. Janey spoke.” California PRA also claims that the City “failed to disclose briefing material for Ms. Janey’s calls” and “may have failed to search for other requested memoranda.” The City’s Responses In its August 31, 2021 response, the City provided numerous records in redacted form. In its September 7, 2021 response, the City stated that “[t]he records were provided that exist.” 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 2.04(5). In this case, it is not clear whether the City possesses additional records responsive to the request. Specifically, it is unclear why the City would not have additional calendar and phone call records covering the time period from November 3, 2020 until January 1, 2021. The City must clarify this. Conclusion Accordingly, the City is ordered to provide California PRA 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 the response to this office at pre@sec.state.ma.us.

Shawn A. Williams, Esq. SPR21/2323 Page 3 September 24, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: California PRA