Michael Weingarten v. Boston, City of - Public Records (SPR 20232853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 8, 2023 SPR23/2853 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 Michael Weingarten 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 August 15, 2023, Mr. Weingarten requested the following records: [1] For the period from January 1, 2022 through August 15, 2023, copies of email communications regarding Back Bay Bike Lane and Copley Connection projects…; [2] Copies of the analyses touted by [an identified individual] in his aforementioned June 22 conversation with [named individuals]…; [3] Any other analyses from January 1, 2022 through August 15, 2023, that have not already been produced, including analyses for Copley Connect; [4] Any Synchro study outputs in PDF format or SimTraffic output in Mac readable format that show current traffic and/or alternative bike lane scenarios…; [5] Copies of [a named individual’s] “narrative about benefits of the Copley closure for biking on Dartmouth and the vehicle congestion impacts on Berkeley;” and plans for a separated bike line on Berkeley; [6] Copies of the Copley Connect analysis (and “upcoming bike plan announcement”) referenced by [an identified individual] of BTD in PDF#62; and, [7] Any reports/studies for the Bike Lane and Copley Connect projects from 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. SPR23/2853 Page 2 December 8, 2023 January 1, 2022 through August 15, 2023. Prior Appeals This request was the subject of a previous appeal. See SPR23/2250 Determination of the Supervisor of Records (October 2, 2023) and SPR23/2409 Determination of the Supervisor of Records (October 24, 2023). In my October 24th determination, I found that the City did not meet its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). I ordered the City to provide Mr. Weingarten with a response to his request, and provide an estimated date as to when the City expects to complete its review and provide the requested records. In addition, I found that to the extent possible, the City must provide records on a rolling basis. On November 22, 2023, the City provided Mr. Weingarten with a response to his August 15th request. As a result of the City’s November 22nd response, Mr. Weingarten petitioned this office, and this appeal, SPR23/2853, 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 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 20th and November 22nd responses In a previous response on October 20, 2023, the City stated “[t]he City is currently in the process of reviewing the records that may be responsive to this request. The email search has yielded over 1,000 results and the City is making an effort to render a response as soon as possible. I sincerely apologize for the delay and I will provide an update next week concerning progress.”

Shawn A. Williams, Esq. SPR23/2853 Page 3 December 8, 2023 The City’s November 22nd response states, “[t]here are no additional records responsive to your request.” In addition, the City states, “the following information was provided to me by the Boston Transportation Department”: The Boston Transportation Department chose Berkeley Street to be part of a larger expansion to close gaps in Boston’s low-stress bike network because a Berkley Street lane would create a continuous, comfortable bike route from the South End and South Boston into the Back Bay--a major employment center. Berkeley Street provides a connection to South Boston, unlike Dartmouth Street. Additionally, the section of Dartmouth Street south of Stuart Street is two-way, has a high volume of traffic, significant numbers of vehicles making turns, and a constrained width--all of which make it difficult to design a comfortable bike facility. A lane ending at Back Bay Station would serve a much more limited population of bicyclists. … Many people don’t feel comfortable riding on streets without bike lanes or on bike lanes like those on Dartmouth Street, which have no separation between drivers and bicyclists. The lane on Berkeley Street would be separated from moving vehicles by a buffer and flexible delineators. Studies have shown that separated bike lanes make streets safer for everyone, whether they are walking, driving, or biking. The planning approach for this project was similar to that undertaken by the City for other bike projects and reflects statewide and nationally accepted practices, including those documented in MassDOT’s Separated Bike Lane Planning & Design Guide. Current Appeal In his petition, Mr. Weingarten asserts, “…the City is being disingenuous in its November 22nd response. Aside from the sheer implausibility that over a multi-year period, there have been no emails and analyses relating to an important City bike lane initiative, the City’s previous letter of October 20, 2023 noted that the email search [to date] has yielded over 1,000 results. Now, these seemingly no longer exist.” Subsequent to the opening of the current appeal, the City provided a December 7, 2023 response. The City’s response states, “I have alerted representatives from the Transportation Department regarding this matter in an effort to resolve any outstanding issues regarding your August 15, 2023 public records request. I will provide an update to you once additional information is provided to me by the department…” After receipt of the December 7th response, Mr. Weingarten states, “[t]he [August 15th] request is now almost 4 months old. At the least, I should be receiving partial production without further delay.”

Shawn A. Williams, Esq. SPR23/2853 Page 4 December 8, 2023 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). Based on the City’s responses, it is unclear whether the City possesses records responsive to Mr. Weingarten’s August 15th request. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Weingarten 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: Michael Weingarten