Don Kempner Warner Saklad v. Boston, City of - Public Records (SPR 20230669)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 20, 2023 SPR23/0669 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 March 29, 2023, Mr. Warner Saklad requested the “intelligible understandable Stenographic Record from today’s March 29, 2023 Public Meeting of Boston City Council…” On April 6, 2023, the City responded. Unsatisfied with the City’s response, Mr. Warner Saklad petitioned this office and this appeal, SPR23/0669, 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. SPR23/0669 Page 2 April 20, 2023 The City’s April 6th Response In its April 6, 2023 response, the City states that, “[t]he responsive record is attached.” Current Appeal In his appeal, Mr. Warner Saklad asserts, “[p]lease [a]ppeal this denial of an intelligible understandable Stenographic Record[.]” In a supplemental email dated April 12, 2023, the City states, “[a]ll records have been provided and no other 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 possession, custody or control 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. Warner Saklad’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Warner 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). Sincerely, Manza Arthur Supervisor of Records cc: Don Kempner Warner Saklad