Mickey Long v. Boston, City of - Public Records (SPR 20222929)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 6, 2023 SPR22/2929 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 Attorney Mickey Long, on behalf of Local 7 Iron Workers Union, 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 October 4, 2022, Attorney Long requested the following concerning a specified project: 1. All General Laws Chapter 149 Section 27B certified payroll records submitted by any contractor that worked on the Project that performed the installation of the G.L. c. 149 § 44F(l)(a) ... (d) “miscellaneous and ornamental iron” work (‘FSB Misc. Iron’); 2. The FSB Misc. Iron contract for the Project. Please include all documents that constitute any extra or corrective work, if any, that may have been performed under that FSB Misc. Iron contract; and 3. All documents that constitute a payment made by the awarding authority for that FSB Misc. Iron work or any portion thereof. Following subsequent correspondence, the City responded on December 16, 2022. Unsatisfied with the City’s response, Attorney Long 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 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. SPR22/2929 Page 2 January 6, 2023 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. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City’s Responses In its October 27, 2022 response, the City provides Attorney Long a “Statistical Report by Trade.” In its November 1, 2022 response, the City provides the same report “that lists all trades on this project,” and indicates that one contractor “has had ironworkers.” In its December 16, 2022 response, the City states that it “does not have certified payrolls for FSB Ironworks for this project. Also, the [City] does not have a copy of a contract ... for FSB Ironworks for this project.” Certified Payroll Records The City is advised that disclosure of certified payroll records is governed by G. L. c. 149, § 27B which states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency ... or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records ... . . . The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. c. 149, § 27B.

Shawn A. Williams, Esq. SPR22/2929 Page 3 January 6, 2023 Where the City has indicated that ironworkers were involved in the specified project, and the statute cited above requires the City to obtain the payroll records requested by Attorney Long, and to make the records available for inspection, it is unclear how the City does not possess responsive records. The City must clarify this. Possession, Custody, or Control 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). Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The City is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the City’s response, it is unclear whether the records for the City’s agents were searched. As such, I find that the City must provide additional information detailing their search in order to determine if the City has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. Conclusion Accordingly, the City is ordered to provide Attorney Long 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.

Shawn A. Williams, Esq. SPR22/2929 Page 4 January 6, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Mickey Long, Esq.