Charles Teague v. Cambridge, City of - Office of the City Solicitor (SPR 20232093)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 15, 2023 SPR23/2093 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Charles D. Teague appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2023, Mr. Teague requested: (1) Documents from Barrett Tree Service East delivered to the City of Cambridge from January 1, 2023 to the present day. In particular: (a) All contracts, proposals, and invoices from Barrett Tree Service East to and with the City of Cambridge; (b) All reports and drafts of reports concerning work performed by Barret Tree Service along, in, or nearby the so-called “Linear Park” in North Cambridge spanning approximately from Rindge Avenue/Route 16, crossing Harvey Street, crossing Massachusetts Avenue (and/or Cedar Street), crossing Cameron Avenue, and ending at the Somerville boundary. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1672 Determination of the Supervisor of Records (July 27, 2023). I closed SPR23/1672 after I learned that the City provided Mr. Teague with a supplemental response on July 26, 2023, including additional responsive records. Unsatisfied with the July 26th response, Mr. Teague petitioned this office and this appeal, SPR23/2093, 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

Seah Levy SPR23/2093 Page 2 September 15, 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) (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). Current Appeal In his petition, Mr. Teague asserts, “[t]he [City] created the impression that the [C]ity had fully responded to this Public Records [r]equest rather than proffering argument to support its continued withholding of documents…” Mr. Teague indicates, “[t]he [City] has failed to produce the drafts of the reports, failed to admit that drafts were not produced and failed to explain this lack of production.” In addition, Mr. Teague indicates, “[t]he [City] also failed to provide photographic documentation for more than two-thirds of the subject trees. The vendor’s proposal and invoice clearly state that photographic documentation was required to be delivered to (and was subsequently invoiced as being delivered to) the [City] for the large majority of said trees. The [City] failed to state that (some) photographs were not produced and failed to explain their lack of production.” Based on the City’s July 26th response, coupled with Mr. Teague’s claims in his petition, it remains unclear if the City possesses additional records responsive to the request. Specifically, the City must clarify whether it possesses records that Mr. Teague has asserted he did not receive. 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). 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). Therefore, the City must clarify whether additional records exist.

Seah Levy SPR23/2093 Page 3 September 15, 2023 Conclusion Accordingly, the City is ordered to provide Mr. Teague with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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: Charles D. Teague