Christopher Mullady v. Boston, City of - City Council (SPR 20230116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2023 SPR23/0116 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, among other items, 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.) Previous Appeals This request was the subject of previous appeals. See SPR22/2867 Determination of the Supervisor of Records (December 20, 2022) and SPR22/2923 Determination of the Supervisor of Records (January 4, 2023). In my January 4th determination, I ordered the City to provide an estimated date as to when it would provide responsive records. Subsequently, the City responded on January 13, 2023, providing multiple responsive records. Unsatisfied with the City’s response, and contending that the City possesses additional responsive records, Mr. Mullady further appealed, and this case 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. SPR23/0116 Page 2 February 3, 2023 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. Current Appeal In his appeal petition, Mr. Mullady contends that the City has “not produced all records responsive to item 1. That item calls for a ‘complete copy’ of ‘the proposal … for the loan.’” Specifically, in correspondence included with his appeal petition, Mr. Mullady includes links to recordings of the May 10, 2022 meeting of the Boston Art Commission (Commission), at which the Commission discusses a “written proposal” for the loan. The City’s January 13th Response 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). In its January 13, 2022 response, the City provides a copy of a presentation concerning a Monuments Exhibition, and a copy of a blank “Outgoing Loan Agreement.” Based on the City’s response, and the information provided in Mr. Mullady’s appeal petition, it is unclear whether the City possesses additional records responsive to Part 1 of the request. The City must clarify this. 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.

Shawn A. Williams, Esq. SPR23/0116 Page 3 February 3, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Christopher Mullady