Don Kempner Warner Saklad v. Boston, City of - Public Records (SPR 20221957)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2022 SPR22/1957 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 Don Saklad 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 May 27, 2022, Mr. Saklad requested the “…Stenographic Record of May 25, 2022 Public Meeting of Boston City Council. Both a) capable of being comprehended Stenographic Record produced under a City Contract for Stenographic Services and b) Stenographic Data however undecipherable, for example .sgstn.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1460 Determination of the Supervisor of Records (July 8, 2022). In my July 8th determination, I found that the City intended on providing a response to Mr. Saklad and closed the appeal. On July 12, 2022, the City provided a further response. Unsatisfied with the City’s response, Mr. Saklad petitioned this office and this appeal, SPR22/1957, 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. 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. SPR22/1957 Page 2 September 7, 2022 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. The City’s July 12th Response In its July 12, 2022 response, the City stated, “[a] responsive record was provided to you on June 21, 2022, and no other records exists.” In a phone call on September 7, 2022, the City confirmed that no additional responsive records exist. Records in Existence Mr. Saklad is advised that 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). However, 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). Public records requests; petitions to Supervisor of Records While this appeal was pending, this office received further correspondence from Mr. Saklad regarding this appeal. In these communications, Mr. Saklad indicated that based on the response provided by the City on July 12th he is now seeking to obtain a dictionary file for the stenographic record that may be in the City’s possession, custody, or control. Mr. Saklad is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Where the request for subsequent records was not made directly to the City’s RAO, I decline to opine on that matter. If Mr. Saklad would like to obtain copies of these records, Mr. Saklad is advised that he should make a separate public records request to the City’s RAO. Mr. Saklad may then appeal the substantive nature of the City’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion Where the City confirmed that it does not possess additional records responsive to Mr. Saklad’s request, I will now consider this administrative appeal closed. If Mr. Saklad is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Shawn A. Williams, Esq. SPR22/1957 Page 3 September 7, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Don Saklad