Colman Herman v. Boston, City of - Transportation Department (SPR 20231663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2023 SPR23/1663 Shawn A. Williams, Esq. Director of Public Records Records Access Officer 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. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2023, Mr. Herman requested “…copies of any and all documents that provide information regarding the investigation of Boston parking enforcement officers” in relation to a specified incident. The City provided a response on July 18, 2023. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR23/1663, 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 town 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) (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). 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. SPR23/1663 Page 2 July 31, 2023 The City’s July 18th response In its July 18, 2023 response, the City stated the following: A response to a public records request must be provided within ten (10) business days from the business day a written request was received. G. L. c. 66, § 10 (a); 950 CMR 32.06(2)(b). The public records law permits a response time of up to twenty-five (25) business days from the business day a written request is received, so long as a detailed explanation is provided. G. L. c. 66, § 10(b)(vi); 950 CMR 32.06(2)(i). Due to the nature of your request additional time is needed. As such, the Transportation Department will need up to, but no more than, fifteen (15) additional business days to review and process your request. Current Appeal In his appeal, Mr. Herman states the following: This is an appeal against the Boston Transportation Department (BTD). The following are the details. 1) On July 3, 2023, I filed a public records request with Shawn Williams, the City of Boston’s records access officer, seeking copies of records related to an investigation of BTD personnel. 2) On July 18, 2023, RAO Williams wrote the following to me in relevant part. The public records law permits a response time of up to twenty-five (25) business days from the business day a written request is received, so long as a detailed explanation is provided. G. L. c. 66, § 10(b)(vi); 950 CMR 32.06(2)(i). ‘Due to the nature of your request’ additional time is needed. As such, the Transportation Department will need up to, but no more than, fifteen (15) additional business days to review and process your request. [emphasis added] 3) The phrase ‘Due to the nature of your request’ fails to provide the specificity required by the public records law for expansion of deadlines, given that M.G.L. c. 66, § 10(b)(v) requires a ‘detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public record sought.’

Shawn A. Williams, Esq. SPR23/1663 Page 3 July 31, 2023 4) Accordingly, please order the Boston Transportation Department to produce the responsive records. G. L. c. 66, § 10(b)(vi) Pursuant to G. L. c. 66, § 10(b)(vi), a records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided that, for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. Where the City has indicated they intend to provide a response within the allowed statutory timeframe, it is unclear the basis of Mr. Herman’s appeal. See G. L. c. 66, § 10(b)(vi). Conclusion In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A (a). Given that no violation of G. L. c. 66, § 10 has been asserted by Mr. Herman in his appeal petition, I am unable to issue a determination at this time. If Mr. Herman 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, § l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman