Robert Burke v. Boston, City of - Public Records (SPR 20232642)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2642 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Robert Burke 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 18, 2023, Mr. Burke requested “…all records concerning [an identified individual] 5/1/21- 7/17/23.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2135 Determination of the Supervisor of Records (Supervisor) (September 20, 2023). In my September 7th determination, where the City had not yet responded to Mr. Burke’s request, I ordered the City to provide Mr. Burke with a response to his July 18th request. On October 5, 2023 the City contacted Mr. Burke, stating, “[t]he records responsive to [your] request have been released to Public Records Center. Click the link below to login to the Records Center. City Public Records Request – R002581-071923.” After receiving and reviewing the records from the City, Mr. Burke petitioned the Supervisor, and the current appeal, SPR23/2642, was opened. 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). 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. SPR23/2642 Page 2 November 16, 2023 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). 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. Current Appeal In his petition, Mr. Burke states: …[t]he response of over 6900 pages begs the credibility of the [City]. When News Reports made Mayor Wu acknowledge that my name was on one of the Enemies Hit List. The email I’m citing was produced and sent from the Top Command . . . of the Wu Administration to the Boston Police Department … I have received over 6900 pages of mush ... I would estimate that over 99.9% of these pieces of paper have nothing to do with me. This particular Enemies Hit List was initiated from somewhere and this document was not even included in the response by the [City’s] Records Department… Based on Mr. Burke’s petition it is unclear whether any of the City’s departments, including the police department is in possession of the so-called Enemies Hit List. It is also uncertain whether this particular record existed and was destroyed or whether the record did not initially exist. 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). The City must clarify whether additional records exist. Conclusion Accordingly, the City is ordered to provide Mr. Burke 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.

Shawn A. Williams, Esq. SPR23/2642 Page 3 November 16, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Robert Burke