Christopher Mullady v. Boston, City of - Public Records (SPR 20212673)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 26, 2021 SPR21/2673 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Christopher Mullady appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2021, Mr. Mullady requested the following records from the City’s Art Commission: “all commissioners’ communications that constituted deliberation that related in any way to the Emancipation Group memorial…and all documents exchanged or otherwise used by the participants in the course of any such deliberation.” Prior Appeals The requested records were the subject of prior appeals. See SPR21/1634 (Determination of the Supervisor of Records (July 19, 2021); SPR21/2438 Determination of the Supervisor of Records (October 5, 2021). In my October 5th determination, I found that the City provided Mr. Mullady with a supplemental response on October 1, 2021. Unsatisfied with the City’s October 1st response, Mr. Mullady petitioned this office and this appeal, SPR21/2673, 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). 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. SPR21/2673 Page 2 October 26, 2021 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. The City’s October 1st response In its October 1st response the City stated, “…it is my understanding that the outstanding requests referred to in your June 12 request are regarding emails by members of the Boston Art Commission and that you request confirmation that members of the Boston Art Commission were made aware of their obligation to comply with a search of their personal emails.” The City further stated “…a member of staff compiled the requested correspondence from Commissioners to the best of our abilities and sent the materials to Mr. Williams. The emails we’ve compiled were posted on the Boston Art Commission’s website under the meeting minutes link.” Current Appeal In his current appeal petition Mr. Mullady states, “…the City’s October 1 response (Exhibit B) still leaves it entirely unclear whether the art department and the art commissioners carried out a search of the commissioners’ communications, that corresponded to the full scope of the June 12 public records request.” Based on the City’s response, it is unclear if it possesses additional records responsive to the above request. 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). The City must clarify whether an exhaustive search was performed. Conclusion Accordingly, the City is ordered to provide Mr. Mullady 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.

Shawn A. Williams, Esq. SPR21/2673 Page 3 October 26, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Mullady