Christopher Mullady v. Boston, City of - Public Records (SPR 20222923)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2023 SPR22/2923 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 Christopher Mullady 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 November 28, 2022, Mr. Mullady requested the following: The “Memorial” means the Emancipation Group memorial or any part of it. The “loan” means the intended loan of the Memorial for display at The Museum of Contemporary Art in Los Angeles (“MOCA”). 1. The proposal and site report for the loan, and any other material relating to the loan or to the Memorial that was distributed to the members of the art commission in connection with their May 10, 2022, meeting. (A single complete copy of that material is all that is called for, not multiple copies as received by each member; and likewise for the other items of this request.) 2. The entire text of the agreement for the loan, including the full documentation of any side agreement or side understanding whatsoever in connection therewith, regardless of the identity of the parties involved. 3. Each opinion and each factual study or report, prepared by or on the responsibility of the Corporation Counsel after January 2021, relating to the gift of the Memorial in 1879, or to the City’s obligations as they relate to the removal or dismantling of the Memorial or its use for other purposes. 4. Each opinion of counsel on any of the subjects listed in item 3, that was communicated by the City or anyone affiliated with it, to the borrower or anyone affiliated with the borrower, or vice versa. Without implied limitation, the “borrower or anyone affiliated with the borrower” includes MOCA and LAXART and any of their representatives. 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. SPR22/2923 Page 2 January 4, 2023 Previous Appeal This request was the subject of a previous appeal. See SPR22/2867 Determination of the Supervisor of Records (December 20, 2022). In my December 20th determination, I closed SPR 22/2867 in light of the City providing a response to Mr. Mullady on December 15, 2022. Unsatisfied with the City’s response, Mr. Mullady further 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). 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. The City’s December 15th Response In its December 15, 2022 response, the City states that the Records Access Officer (RAO) has “been in contact with the department and that office notified [the RAO] that it is actively reviewing [Mr. Mullady’s] request and will provide a response to that request as soon as possible.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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 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).

Shawn A. Williams, Esq. SPR22/2923 Page 3 January 4, 2023 Where Mr. Mullady submitted his request on November 28, 2022, and the City has not provided responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the City must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Mr. Mullady 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, Manza Arthur Supervisor of Records cc: Christopher Mullady