Massachusetts Free Press v. Boston, City of - Public Records (SPR 20232740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 27, 2023 SPR23/2740 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 Massachusetts Free Press (requestor) 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 June 25, 2023, the requestor sought: …a copy of the following records: All records, including but not in any way limited to: Emails; Voicemails; Audio of Recorded phone calls, and all metadata for the phone calls themselves (ex: time call made, all phone numbers involved in the call, service provider, this is not [an] exhaustive list just an example to give [the City] an idea of what I mean by metatdata); Texts in the possession of the [City]; Any paper record; Meeting minutes, and all other records held by the [City]; That contain [fourteen] key words. . . Prior Appeal This request was the subject of a previous appeal. See SPR23/1818 Determination of the Supervisor of Records (August 18, 2023). In my August 18th determination, I closed the appeal after I learned that the City intended on providing a written response to the requestor. On October 6, 2023, the City provided a response. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR23/2740, 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 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. SPR23/2740 Page 2 November 27, 2023 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. The City’s October 6th response In its October 6, 2023 response, the City indicated: [t]he City does not have voicemails or phone records responsive to your request. The [City] does not use text to conduct business and as such there are no text messages responsive to your request. There are no public bodies of the [City] that have records responsive to your request and as such there are no meeting minutes responsive to this request. There are no paper records responsive to this request. I ran a preliminary email search and found over 100,000 records that contain one of more of the names identified in your request. Your request seeks information associated with a news event that would likely be identified in numerous email records. As such, your request does not comply with the Massachusetts [P]ublic [R]ecords [L]aw and its’ [A]cess [R]egulations, as it is overly broad and vague. A public records request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Also, in the October 6th response, the City cites Chawla v. Dep’t of Revenue, Suffolk. Sup. No. 1784CV02087 at 2 (January 23, 2019), and asserts, “…the court found 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.’” Finally, the City states, “[s]hould you seek specific records I encourage you to visit the City’s public records portal. . . .”

Shawn A. Williams, Esq. SPR23/2740 Page 3 November 27, 2023 Current appeal In its petition, the requestor states: [t]he [C]ity denied my request on the basis that my request did not reasonably describe the records I sought. Yet, my request did meet the requirements for a public records request … it did reasonably describe the records sought, i.e., the records including the keywords listed in the initial request. I am also appealing since the response from the City did not meet the requirements of 950 C.M.R. 32.06(2)(g) as the [C]ity did not attempt to reach out to the modify or narrow down the request. The City also failed to meet the requirements laid out in 950 C.M.R. 32.06(3)(c)(6) as they did not specifically laid out why each record was exempt. Subsequent to the opening of the appeal, the City provided a supplemental response on November 17, 2023. In the November 17th response, the City informed the requestor that, “[we] have alerted representatives from the department regarding this matter in an effort to resolve any outstanding issues regarding your June 25, 2023 public records request. [We] will provide an update to you once additional information is provided to [the office of the Director of Public Records]. A copy of any update, as well as this communication will be provided to the [Supervisor of Reocrds]. [The City] asks that any written determination by the Supervisor acknowledge this communication as an act of cooperation towards resolving any outstanding issues associated with your request for public records.” 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). 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); see also G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Where the request was made on June 25, 2023, and the requestor has not been provided any of the responsive records, I find the City has not met its burden in responding to the June 25th request. The City must provide a timeframe for production of records in the City’s possession that are responsive to the request. 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 the requestor with a response to the request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10)

Shawn A. Williams, Esq. SPR23/2740 Page 4 November 27, 2023 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: Massachusetts Free Press