Colman Herman v. Boston, City of - Office of the Mayor (SPR 20212352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2021 SPR21/2352 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman 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 August 6, 2021, Mr. Herman requested recordings of telephone calls between Acting Mayor Kim Janey’s press personnel and reporters from June 1, 2021 to the present. Previous appeal This request was the subject of a previous appeal. See SPR21/2145 Determination of the Supervisor of Records (August 31, 2021). SPR21/2145 was closed after the City provided a response on August 30, 2021. Unsatisfied with the City’s response, Mr. Herman petitioned this office and this appeal, SPR21/2352, 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 or redacted portion of the responsive record. 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. SPR21/2352 Page 2 September 28, 2021 The City’s August 29th response In its August 29, 2021 response, the City states “[t]o date it is my understanding that at least one of the former members of the Mayor’s Press Office and one of the current members have no responsive records. The former staff member did make such recordings and deleted them once the administrative use for such record ceased. Further, that former staff member is now in another department and returned the recording device (a mobile phone) to the City. That device has been wiped and reallocated and no records from that device exist.” The City further states “[w]hat remains is to determine whether any other member of the Mayor’s Press Office possess responsive records. I have copied representatives from the Mayor’s Press Office on this correspondence in an effort to obtain an update on the status of your August 06, 2021 public records request. I will provide an update to you within five (5) business days.” In his appeal petition, Mr. Herman states the following: 6) The destruction of the recordings by the city was not in accordance with the municipal records retention policy. These recordings did not involve matters such as arranging meetings. They were done to memorialize substantive conversations with reporters, of which I was one on a number of occasions. 7) Technology exists to recover deleted recordings. Accordingly, p[l]ease order the city to make a diligent effort to do so. Based on the City’s response, I find the City must demonstrate whether it followed proper records retention protocol. Please be advised, 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. Conclusion Accordingly, the City is ordered to provide Mr. Herman 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman