Boston Accountability Network v. Massachusetts Convention Center Authority (SPR 20232277)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2277 Philip Crohan Public Access Officer Massachusetts Convention Center Authority 415 Summer Street Boston, MA 02210 Dear Mr. Crohan: I have received the petition of Boston Accountability Network appealing the response of the Massachusetts Convention Center Authority (Authority/MCCA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 22, 2023, the requestor sought “[t]he number of non-disclosure agreements (NDAs) executed between the MCCA and former employees over the last 7 years including NDA agreements with the MCCA directly and via agents on behalf of, including but not limited to outside law firms and insurance companies.” Previous appeal The request was the subject of a prior appeal. See SPR23/2141 Determination of the Supervisor of Records (September 22, 2023). I closed SPR23/2141 after I learned that the Authority provided the requestor with a response on September 18, 2023. Unsatisfied with this response, the requestor petitioned this office and this appeal, SPR23/2277, 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); 950 C.M.R. 32.06(3); see also Dist. 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

Philip Crohan SPR23/2277 Page 2 October 10, 2023 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Authority’s September 18th response In its September 18, 2023 response, the Authority indicates that “[t]he Massachusetts Convention Center Authority has reviewed its records going back to 2016 and has found six (6) settlement agreements that contain non-disclosure language.” Current appeal In an email to this office dated September 22, 2023, the requestor states that “our [previous] appeal wasn’t opened specifically for the lack of response from Mr. Crohan but for the lack of records disseminated.” The requestor adds that “[w]hile Mr. Crohan did reply saying that six (6) records exist pertaining to our request, he never delivered those to us. We have since responded to Mr. Crohan informing him of this oversight and he has not delivered us the pertinent records[.]” In a subsequent email to this office dated September 25, 2023, the requestor further indicated: All the MCCA did was inform us how many of the records requested do exist. The MCCA hasn’t taken any substantive action on our request or released a single document . . . . [T]he MCCA has essentially just said “we saw your request and do have relevant documents” but not released them to us . . . . We are therefore asking that your office mediate this situation with the MCCA until this request is completed in its entirety. In its August 22nd request, the requestor sought “[t]he number of non-disclosure agreements (NDAs) . . .” However, in its September 22nd and September 25th email correspondences, the requestor appears to expand the request to include copies of the “non- disclosure agreements (NDAs) executed between the MCCA and former employees over the last 7 years” that the Authority identified in its September 18, 2023 response. The requestor is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for copies of the “non- disclosure agreements (NDAs) executed between the MCCA and former employees over the last 7 years” was not made directly to the Authority’s RAO in the requestor’s original request, I decline to opine on that matter.

Philip Crohan SPR23/2277 Page 3 October 10, 2023 If the requestor would like to obtain copies of these records, the requestor is advised to make a separate public records request to the Authority’s RAO. The requestor may then appeal the substantive nature of the Authority’s response within ninety calendar days. See 950 C.M.R. 32.08(1); see also Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019) (holding that “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.”). Conclusion Accordingly, I will now consider this administrative appeal closed. If the requestor 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Boston Accountability Network