Boston Accountability Network v. Boston, City of - Public Records (SPR 20232762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2023 SPR23/2762 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 the Boston Accountability Network, 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 23, 2023, the requestor sought, “[a]ny and all messages and data from the encrypted messaging app ‘Signal’ involving [a named individual], Chief of Community Engagement for Mayor Michelle Wu. To be clear, we are requesting copies of not only all messages received/sent/exchanged but the data files for this application as well… We are requesting both the ‘TXT’ and ‘JSON’ files available.” The City responded on November 6, 2023. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR23/2762, 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 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); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. SPR23/2762 Page 2 November 29, 2023 The City’s November 6th Response In its November 6, 2023 response, the City stated, “[the requestor’s] request seeks records made or received with the Signal mobile application, which is not an authorized tool for City communications. Employees with City-owned devices are instructed not to add unauthorized instant messaging applications. As the City neither authorizes the usage nor manages any records created or received by Signal, the City has no records in response to [the requestor’s] request.” Current appeal In the appeal, the requestor states, “[t]he fact that [the City] does not authorize the use of said applications for communications does not negate the fact that they are being used. As such, the reality that these unauthorized messaging applications are being used for city business does not preclude them from being public record.” Based on the City’s response and the requestor’s appeal, it is unclear if the City possesses any records responsive to the request. 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). The City must clarify whether it possesses records responsive to the request. Conclusion Accordingly, the City is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Boston Accountability Network