Colman Herman v. Boston, City of - Office of the Mayor (SPR 20230079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2023 SPR23/0079 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 26, 2022, Mr. Herman requested “copies of any and all invoices submitted this year by the [L]aw [F]irm of Saul Ewing Arnstein & Lehr.” In communications between Mr. Herman and the City on January 11, 2023, Mr. Herman questions whether he had been provided with all the responsive invoices. The City responded on January 11th, “[a]s indicated in my communication no invoices were withheld. As I previously stated there is a new staff member in the law department and [the Director of Public Records] will double-check to see if there are any other invoices.” In a January 12, 2023 response, the City states, “[t]he Law Department informed [Attorney Williams] today that it has no additional records so we are now checking again with [the School] to see if they have any responsive invoices.” On January 17, 2023, after not receiving any further records or a response, Mr. Herman petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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). 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. SPR23/0079 Page 2 January 30, 2023 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) (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). 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. Current Appeal In his January 17, 2023 petition, Mr. Herman states, “I have not heard anything further from Mr. Williams. Accordingly, please order the [City] to produce copies of the invoices from Saul Ewing Arnstein & Lehr related to the investigation into allegations of discrimination against administrators of color at [the School]. Moreover, the line items for the invoices that were provided were completely redacted. The line items can be redacted for legal strategy descriptions but not for items such as telephone call with client.” Based on the City’s response, in conjunction with Mr. Herman’s petition, it is unclear whether the City provided Mr. Herman with a response regarding the exemption(s) claimed to redact the invoices. It is additionally uncertain whether the City possesses additional records responsive to the above request. 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). 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). The City must clarify whether the City and/or School possesses any additional records responsive to Mr. Herman’s request. Conclusion Accordingly, the City is ordered to provide Mr. Herman with a response to his request 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 the response to this office at pre@sec.state.ma.us.

Shawn A. Williams, Esq. SPR23/0079 Page 3 January 30, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman