Shannon Llewellyn v. Boston, City of - Public Records (SPR 20232879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2023 SPR23/2879 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 Shannon Llewellyn 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 6, 2023, Ms. Llewellyn requested “…any and all documents and attachments including but not limited to: emails, text messages, pictures, video and audio recordings, reports, meeting notes, all data and surveillance collected, all communications internal and external, concerning or pertaining to [an identified individual] (or any other names/aliases . . .) between the dates of January 1st 2021 and October 6, 2023.” On October 23, 2023, the City provided a response to Ms. Llewellyn, “… [d]ue to the nature of your request additional time is needed. As such, the City will need up to, but no more than, fifteen (15) additional business days to review and process your request.” In a November 15, 2023 response to her follow-up for status on her request, Attorney Williams informed Ms. Llewellyn, “[t]hank you for your communication today seeking an update on the status of your request. The review of the request is not complete and we will not be able to provide a full response today. We will provide an update as soon as possible in an effort to resolve this matter. Should you have any questions please let me know.” As a result of the City’s November 15th response, Ms. Llewellyn 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 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. SPR23/2879 Page 2 December 12, 2023 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 her petition, Ms. Llewellyn asserts, “…I received the attached email back on October 23rd stating that 10 business days weren’t sufficient and an additional 15 business days were needed. No reason given. Even with the additional time allotted, they failed to complete the record request. They did not reach out to me with an update, so I emailed again to inquire. Shawn Williams answered – again without citing reason for the delay, without fulfilling the record request and without giving me a date when it would be completed.” Timeliness of Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Shawn A. Williams, Esq. SPR23/2879 Page 3 December 12, 2023 Where Ms. Llewellyn’s request was submitted on October 6, 2023, and to date, the City has not provided any of the responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). The City must provide an estimated date as to when it expects to provide the records. 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. 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). Conclusion Accordingly, the City is ordered to provide Ms. Llewellyn with a response to her 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: Shannon Llewellyn