Don Kempner Warner Saklad v. Boston, City of - City Council (SPR 20230264)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2023 SPR23/0264 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Don Kempner Warner Saklad 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 February 8, 2023, Mr. Saklad requested “the file of English from the [l]aptop computer next to the Stenograph Machine from the public funded Stenographic Record recording during the most recent February 8, 2023 Public Meeting of Boston City Council[,]” and “from the most recent Public Meeting of Boston City Council the Stenographic Record file of .sgstn[.]” On February 9, 2023, the City responded. Unsatisfied with the City’s response, Mr. Saklad petitioned this office and this appeal, SPR23/0264, 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. Attorney 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. 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. SPR23/0264 Page 2 February 24, 2023 The City’s February 9th Response In its February 9, 2023 response, the City states that “[t]he sole responsive record is attached.” Current Appeal In his appeal, Mr. Saklad asserts, “[t]he City of Boston isn’t fully responsive… denying everyone access to this Public Record[.]” In an email dated February 13, 2023, the City states, “[t]he laptop next to the stenographic machine does not display English text. It displays a live YouTube video from the Internet. The YouTube channel has a closed caption function that is part of the YouTube software. There are no other records.” In a supplemental email dated February 23, 2023, the City states: Thank you for your correspondence seeking clarification regarding the laptop computer. The laptop computer does [not] contain any additional records. It contains a live stream of the YouTube broadcast and the closed captions that may appear on the screen are generated by YouTube. Please note that we will not again address this issue as we have stated this previously. The only responsive record is the stenographic file previously provided. No other record will be provided because no other record exists. I again ask the Supervisor of Records to note that no such additional record exists. No Duty to Create Records Please be advised, under the Public Records Law, the City is not required to create records in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 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 custody of the custodian of records at the time of the request. See G. L. c. 4, § 10(a)(ii). Conclusion Where the City has provided the requested record, does not possess any additional records responsive to Mr. Saklad’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Saklad is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c).

Shawn A. Williams, Esq. SPR23/0264 Page 3 February 24, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Don Kempner Warner Saklad