Mickey Long v. Boston, City of - Public Records (SPR 20220125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 27, 2022 SPR22/0125 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 Attorney Mickey Long, on behalf of Iron Workers Local 7, 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 December 16, 2021, Attorney Long requested the following concerning a project at a specified address: 1. All GL c. 149 §27B payroll records submitted by L & L for labor performed on the Project; 2. The contract engaging L & L to provide labor or services on the Project; 3. Any and all documents L & L submitted to any entity owned or controlled by the awarding authority for the Project; and 4. The GL c. 149 §27 Wage Schedule. The City responded on January 12, 2022, stating that it did not have responsive records. Unsatisfied with the City’s response, Attorney Long 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). 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. SPR22/0125 Page 2 January 27, 2022 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. Att’y 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. Current Appeal In his appeal petition, Attorney Long contends that “the City of Boston refused to provide the documents requested, and wrongfully claimed that it lacks ‘possession, custody, or control.’” The City’s January 12th Response In its January 12, 2022 response, the City states the following: The PFD [Public Facilities Department] Project Manager confirmed that L&L is a steel installer for this project, but is a subcontractor. PFD does not have contracts with subcontractors, and all coordination/supervision is done by the contractor on the project, not PFD. Therefore, PFD would not have responsive records in its care, control, or custody that are responsive to this request. Possession, Custody, or Control 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, 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. 32.04(5). Certified Payroll Records In his original request and in his appeal petition, Attorney Long refers to G. L. c. 149, § 27, which states in pertinent part: Prior to awarding a contract for the construction of public works, said public official or public body shall submit to the commissioner [the director of the department of labor standards] a list of the jobs upon which mechanics and apprentices, teamsters, chauffeurs and laborers are to be employed, and shall request the commissioner to determine the rate of wages to be paid on each job. Each year after the awarding of the contract, the public official or public body shall submit to the commissioner a list of the jobs upon which mechanics and apprentices and laborers are to be employed and shall request that the commissioner update the determination of the rate of wages to be paid on each job.

Shawn A. Williams, Esq. SPR22/0125 Page 3 January 27, 2022 . . . In advertising or calling for bids for said works, the awarding official or public body shall incorporate said schedule in the advertisement or call for bids by an appropriate reference thereto, and shall furnish a copy of said schedule, without cost, to any person requesting the same. Said schedule shall be made a part of the contract for said works and shall continue to be the minimum rate or rates of wages for said employees during the life of the contract. Any person engaged in the construction of said works shall cause a legible copy of said schedule and subsequent updates to be kept posted in a conspicuous place at the site of said works during the life of the contract. G. L. c. 149, § 27 (emphasis added). Attorney Long also refers to G. L. c. 149, § 27B, which states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency . . . or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records. . . . The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. c. 149, § 27B (emphasis added). Where the statutes cited above require the City to obtain the types of records requested by Attorney Long, and to make the records available for inspection, it is unclear how the City would not possess responsive records. The City must clarify this. Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The City is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship

Shawn A. Williams, Esq. SPR22/0125 Page 4 January 27, 2022 is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the City’s response, it is unclear whether the records for the City’s agents were searched. As such, I find that the City must provide additional information detailing their search in order to determine if the City has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the City is ordered to provide Attorney Long with a response to his 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mickey Long, Esq.