Michelle Efendi v. Boston, City of - Public Records (SPR 20240094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 25, 2024 SPR24/0094 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 Michelle Efendi, 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 July 26, 2023, Ms. Efendi requested, “... the version of ‘master list of protesters’ as it existed on April 4, 2022, when the e-mail of referencing the ‘master list of protesters was sent.’ I do not want the June 2022 version.” Prior appeal The requested records were the subject of a prior appeal. See SPR23/1987 Determination of the Supervisor of Records (September 6, 2023). The City responded on January 10, 2024. Unsatisfied with the response, Ms. Efendi petitioned this office and this appeal, SPR24/0094, 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 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. SPR24/0094 Page 2 January 25, 2024 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. The City’s January 10th Response In its January 10, 2024 response, the City stated, “... the Boston Police Department confirmed that there is no record responsive to this request.” No Duty to Create Records Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, where the City has confirmed that it does not possess the responsive record, and has no duty to create a record responsive to the request, I will now consider this administrative appeal closed. Ms. Efendi is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Michelle Efendi