Michael Weingarten v. Boston, City of - Public Records (SPR 20232250)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 2, 2023 SPR23/2250 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 Michael Weingarten 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 August 15, 2023, Mr. Weingarten requested the following records: [1.] For the period from January 1, 2022 through August 15, 2023, copies of email communications regarding the Back Bay Bike Lane and Copley Connection projects…[;] [2.] Copies of the analyses touted by [an identified individual] in his aforementioned June 22 conversation with [named individuals]…[;] [3.] Any other analyses from January 1, 2022 through August 15, 2023, that have not already been produced, including analyses for Copley Connect[;] [4.] Any Synchro study outputs in PDF format or SimTraffic output in Mac readable format that show current traffic and/or alternative bike lane scenarios…[;] [5.] Copies of [a named individual’s] “narrative about benefits of the Copley closure for biking on Dartmouth and the vehicle congestion impacts on Berkeley;” and plans for a separated bike lane on Berkeley[;] [6.] Copies of the Copley Connect analysis (and “upcoming bike plan announcement”) referenced by [an identified individual] of BTD in PDF#62[;] 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. SPR23/2250 Page 2 October 2, 2023 [7.] Any reports/studies for the Bike Lane and Copley Connect projects from January 1, 2022 through August 15, 2023[.] The City provided a response on August 29, 2023. Unsatisfied with the response provided and claiming to not yet have received responsive records, Mr. Weingarten petitioned this office and this appeal, SPR23/2250, 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. The City’s August 29th Response In its August 29, 2023 response, the City advised that “…due to the nature of your request, additional time is needed. As such, the City will need up to, but no more than, fifteen (15) additional business days to review and process your request.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and 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. G. L. c. 66, § 10(b)(vi).

Shawn A. Williams, Esq. SPR23/2250 Page 3 October 2, 2023 Where Mr. Weingarten’s request was originally submitted on August 15, 2023, and the City has not provided responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the City must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Mr. Weingarten with a response to his request, provided 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. Mr. Weingarten may appeal the substantive nature of the City’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Weingarten