Mark Michalowski v. Boston, City of - Public Records (SPR 20222200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2022 SPR22/2200 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Attorney Mark C. Michalowskik, of Holland & Knight, LLP., appealing the response of the Boston Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2022, Attorney Michalowski requested the following documents in the possession of the Department’s Hackney Carriage Unit: [1] All documents associated with two or more applications seeking sightseeing automobile permits for open-top double-decker bus tour service in the City submitted at any point between 2014 and the present…[;] [2] Any permits reviewed, denied and/or granted to Uptown Transport Inc. and Historic Boston Tours, LLC. by the Boston Police Department during the relevant period[;] [3] All inspection records, citations, or similar records for Uptown Transport Inc. and Historic Boston Tours, LLC. after permits were granted[;] [4] All records relating to the applications and permits identified…and associated with the listed Hackney Carriage Unit applications and licenses…[;] [5] All records in the possession of the Boston Police Department that discuss, describe or otherwise relate to changes made to Rule 404 by [the] former Police Commissioner…in or around June 2019…[.] The Department provided a response on August 11, 2022. Unsatisfied with the Department’s response, Attorney Michalowski petitioned this office and this appeal, SPR22/2200, was opened as a result. 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. SPR22/2200 Page 2 October 11, 2022 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. 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. The Department’s August 11th Response In its August 11, 2022 response, the Department advised Attorney Michalowski that “… [it] reached out to our person in Hackney who was working on this request… [and] will be in touch.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Michalowski’s request was originally submitted on July 18, 2022, and the Department has not provided responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on

Shawn A. Williams, Esq. SPR22/2200 Page 3 October 11, 2022 a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Michalowski with a response to his 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, Manza Arthur Supervisor of Records cc: Mark C. Michalowski, Esq. Martha J. DeMaio