Laura H. Ortiz v. Boston, City of - Fire Department (SPR 20231965)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2023 SPR23/1965 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 Laura Ortiz 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 July 27, 2023, Ms. Ortiz requested the following records: 1. Copy of any Department inspections, State inspections or safety inspections including the requests as well as completed inspections and Sign Offs for the following property address Massachusetts State House, 24 Beacon Street, property address, Boston MA 02108 and if applicable all of its buildings, responsive for 2023 and 2022 ... [and] inspections also for the fire alarm systems ... 2. Copy of Department records showing the response times by [identified parties] or any applicable electrical or cable utility, showing their contacted time by BFD ... as well as their utilities arrival times to the Massachusetts State House, 24 Beacon Street, Boston MA 02108 to shut off utilities after Department or Police or other Emergency Department notified the utility company ... scope is January 1 2023-July 27, 2023. 3. Copy of any directives, agreements or other from City of Boston and/or Commonwealth of Massachusetts to [identified parties] that are responsive to anything requiring these utilities to come to the Massachusetts State House, 24 Beacon Street, Boston MA 02108 or any other state governmental building in Boston to shut off utilities after Department or Police or other Emergency Department notifies the utility company that were in effect for 2023. 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. SPR23/1965 Page 2 September 6, 2023 Previous Appeal This request was the subject of a previous appeal. See SPR23/1898 Determination of the Supervisor of Records (August 21, 2023). In my August 21st determination, I ordered the City to provide a written response to Ms. Ortiz. Subsequently, the City responded on August 22, 2023 indicating it does not possess responsive records. Unsatisfied with the City’s response, Ms. Ortiz further appealed, and this case 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. 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. The City’s August 22nd and August 24th Responses In its August 22, 2023 response, the City states the following: We reached out to the Fire Department for assistance with this request. That office stated the following: “we would not have anything to do with inspections at State House, maybe special occupancy, but usually state inspectors do everything at state buildings.” In an email to Ms. Ortiz and this office on August 24, 2023, the City further states that “the Boston Fire Department ... does not have anything to do with inspections at the State House and as such has no records responsive to [the] request” and that “there is no record to withhold.” Please be advised that 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 this case, the City appears to have addressed only Part 1 of Ms. Ortiz’s request. Specifically, although the City’s August 22nd and August 24th responses indicate that the City

Shawn A. Williams, Esq. SPR23/1965 Page 3 September 6, 2023 does not possess records relating to “inspections at the State House,” it is unclear whether the City possesses records relating to Parts 2 and 3 of the request. Further, it is unclear how the City would not possess the types of records described in Parts 2 and 3 of the request, such as records indicating when the Boston Fire Department contacted utility companies, how long it took those companies to respond, and agreements between the Fire Department and the utility companies. Consequently, the City must clarify whether it possesses records responsive to parts 2 and 3 of the request. Conclusion Accordingly, the City is ordered to provide Ms. Ortiz with a response to her 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. Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz