Connie Gutierrez v. Boston Planning & Development Agency (SPR 20232972)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2023 SPR23/2972 Danielle Cournoyer Public Records Specialist Boston Planning & Development Agency One City Hall Square, 9th Floor Boston, MA 02201 Dear Ms. Cournoyer: I have received the petition of Connie K. Gutierrez, Esq., appealing the response of the Boston Planning & Development Agency (Agency/BPDA) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2023, Attorney Gutierrez requested a copy of the “engineering study on the conditions of Pier 5 in the Charlestown Navy Yard,” as well as “‘findings and a vision for the future’ as noted by the BPDA in their email of Nov. 21, 2023.” The Agency provided a response on December 6, 2023. Unsatisfied with the response, Attorney Gutierrez petitioned this office and this appeal, SPR23/2972, 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) (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). 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

Danielle Cournoyer SPR23/2972 Page 2 December 22, 2023 Current appeal In her appeal, Attorney Gutierrez argues that “[s]ince meetings to discuss an Engineering Report have been scheduled, the Engineering Report must be complete.” However, she states that “[the report] is not posted on the BPDA’s website… [n]or [has] [she] been provided with a copy[.]” The Agency’s December 6th response In its December 6, 2023 response, the Agency states that “[t]he consultants that were brought on by the BPDA real estate team to complete the assessment are still working on finishing their final report.” The Agency further states that “[t]he BPDA is committed to sharing the full report and posting it publicly on [its] website when it is complete.” 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). Where Attorney Gutierrez is requesting a copy of the “engineering study on the conditions of Pier 5 in the Charlestown Navy Yard,” I find it is unclear whether the requested record exists and is in the Agency’s possession. To the extent that the requested records exist, I find that the Agency must provide it in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the record from disclosure. G. L. c. 66, § 10(b). The Agency must clarify this matter. Conclusion Accordingly, the Agency is ordered to provide Attorney Gutierrez with a response to the request, provided 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: Connie K. Gutierrez, Esq.