Scott Farmelant v. Boston, City of - Public Records (SPR 20221156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2022 SPR22/1156 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Scott Farmelant 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 April 6, 2022, Mr. Farmelant requested “…records regarding an application submitted to the City’s Transportation Department for permission to provide sightseeing tours via double-decker buses by [identified individual]…” The City provided a response on May 18, 2022. Unsatisfied with the response, Mr. Farmelant petitioned this office and this appeal, SPR22/1156, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. SPR22/1156 Page 2 June 1, 2022 The City’s May 18th Response In its response, the City provided records to Mr. Farmelant. Current Appeal In his appeal petition, Mr. Farmelant contends that “…[t]he documents provided in the portal had no relevance whatsoever to my request…[t]he request also sought all other relevant materials that were on file or otherwise stored, including emails between the applicant and city officials…the request remains unfulfilled.” Despite the City’s response, it remains unclear what records the City possesses responsive to Mr. Farmelant’s request. It is also unclear whether the City possesses records that addresses the other prongs of Mr. Farmelant’s request. The City must identify what records it has in its possession, custody or control that are responsive to Mr. Farmelant’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identified the record, categories of records, or portions of the record it intends to withhold). As a result, I find that the City did not satisfy its burden in responding to Mr. Farmelant’s records request. The City must clarify these issues. Conclusion Accordingly, the City is ordered to provide Mr. Farmelant with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Access 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: Scott Farmelant