Brian McCarter v. Boston, City of - Public Records (SPR 20232658)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2658 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Plaza Boston, MA 02210 Dear Attorney Williams: I have received the petition of Brian McCarter appealing the response of the City of Boston to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2023, Mr. McCarter requested of the: City Council; Fair Housing and Equity; Inspectional Services – Public Records; Intergovernmental Relations (IGR); Neighborhood Services; Mayor’s Press Office; Public Records; and Recovery Services … all emails, letters, applications or records of any communication, meeting notes/minutes/summaries, call logs, related to any new or existing shelters, since July 1, 2023. This would include, but not limited to, Rosie’s Place, Victory Program, Miracle Mile Ministries (or associated churches), a shelter with an unknown name on Washington St, the Engagement [C]enter, Ahope [N]eedle [E]xchange, 727 [M]ass. [A]ve, and any of the low threshold sites planned or already created. This list is not meant to be exhaustive. On November 1, 2023, the City responded, “…this response applies only to records that exist and are in the custody of the City. See A Guide to the Massachusetts Public Records Law, p. 32, n. 115. It is expected that a custodian of records must use her superior knowledge of her records with respect to responses to public records requests. 950 C.M.R. 32.04(5) … The records you seek are not in the possession of the [City] … You may consider contacting the Boston Health Commission (BPHC), which is not a Department of the [City]. You may find the following link helpful in making your request directly to the BPHC. . . . ” As a result of the City’s November 1, 2023 response, Mr. McCarter petitioned the Supervisor of Records on November 3, 2023, and this appeal was opened. 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. Page 2 November 16, 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). 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 November 3rd petition, Mr. McCarter asserts, “[g]iven the sheer number of [C]ity employees between the police, [M]ayor’s office, coordinated response team, [C]ity [C]ouncil and [Boston Public Health Commission] (BPHC) involved, there should be some records. Multiple [C]ity department heads have been in the news over these. It’s impossible that there is not a single email, letter, application[s], records of communication[s], meeting notes or summaries related to the shelter plans. Secondly, I would like to appeal this over the [C]ity considering requests to the whole city to be distinct from BPHC.” Where Mr. McCarter’s November 1st request pertained to multiple City departments, it is unclear whether the City conducted a search for any of the requested records that may be in the possession of any of the City’s departments. 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). Based on the City’s November 1st response, the City must clarify whether it conducted a diligent search for the records requested by Mr. McCarter.

Shawn A. Williams, Esq. Page 3 November 16, 2023 Conclusion Accordingly, the City is ordered to provide Mr. McCarter 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: Brian McCarter