Brian McCarter v. Boston, City of - Public Records (SPR 20232659)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2023 SPR23/2659 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02210 Dear Attorney Williams: I have received the petition of Brian McCarter 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 October 25, 2023, Mr. McCarter requested from the City’s Inspectional Services and Intergovernmental Relations, the following: “…all emails related to [R]osies [P]lace 887 or 889 Harrison Ave., Boston, MA 02118, United States in the last three months. Please provide all permit applications of any kind in the last three months.” On October 23, 2023, the City provided a string of emails from October 19th regarding Mr. McCarter’s request. On November 3, 2023, Mr. McCarter petitioned the Supervisor of Records, and this appeal 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). 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 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. SPR23/2659 Page 2 November 16, 2023 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 The City’s October 23, 2023 response to Mr. McCarter states, “Hi Brian! Apologies for the delay, I had reached out to prior contacts at ISD and didn’t hear back so needed to find another route. I can work on planning that, and please continue to use 311 to report trash to the area can be maintained and they can get violations when appropriate. I’ve also forwarded the complaint about the Public Works’ employees behavior to their supervisor.” On November 3, 2023, Mr. McCarter asked the Supervisor to open an appeal regarding his request to the City, asserting, “…attached one of the emails from a [City] employee sent to me about Rosie’s [P]lace 887 and 889 [H]arrison [A]ve as proof there is at least one responsive record.” Records in Existence 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 Mr. McCarter’s November 3rd assertion, it is unclear whether the City has additional records responsive to Mr. McCarter’s request. The City must clarify whether it is in possession of additional records. 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.

Shawn A. Williams, Esq. SPR23/2659 Page 3 November 16, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter