Colman Herman v. Boston, City of - Parks & Recreation (SPR 20222551)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 23, 2022 SPR22/2551 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 Colman M. Herman appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On September 26, 2022, Mr. Herman requested “ledger entries for the Fund for Parks and Recreation for the period January 1, 2017 to the present.” Previous appeal This request was the subject of a previous appeal. See SPR22/2222 Determination of the Supervisor of Records (October 13, 2022). The City provided responses on October 26, 2022 and October 27, 2022. Unsatisfied with the responses, Mr. Herman petitioned this office and this appeal, SPR22/2551, was opened as a result. Current appeal In his appeal, Mr. Herman asserts that “[t]he responsive information [he is] still seeking can be extracted.” 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, §

Shawn A. Williams, Esq. SPR22/2551 Page 2 November 23, 2022 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). The City’s October 26th and 27th responses In its October 26, 2022 and October 27, 2022 responses, the City explained that “the department ‘[does] not have a responsive record. The ledger puts out a report as a default template, but not all columns are populated.’” No Duty to Create Records Under the Public Records Law, there is no obligation to create a record in response to a public records request. See G. L. c. 66, §6A(d), 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only 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). Conclusion Where the City has indicated that it does not have a responsive record, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman M. Herman