Brian McCarter v. Boston, City of - Public Records (SPR 20240139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2024 SPR24/0139 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Brian McCarter 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 September 20, 2023, Mr. McCarter requested “all the permits requested in the last year on the Miranda Cramer building, also going by 725-727 Massachusetts Ave. Please include certificates of occupancy as well, along with the application.” Previous Appeal This request was the subject of a previous appeal. See SPR23/2412 Determination of the Supervisor of Records (October 24, 2023). In my October 24th determination, I ordered the City to clarify whether it possesses additional records responsive to Mr. McCarter’s request. Subsequently, the City responded on January 16, 2024, claiming it had provided all responsive records. Unsatisfied with the City’s response, Mr. McCarter further appealed, and this case 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. 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. SPR24/0139 Page 2 January 31, 2024 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. 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 January 16th Response In its January 16, 2024 response, the City states that “the City of Boston provided all responsive records.” In his appeal petition, Mr. McCarter contends the following: There are responsive records that have not been provided by the city of [B]oston in this matter. The search was far from exhaustive. Pieces of the application are still missing which the City of Boston has in it’s [sic] possession that have not been turned over. 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). Please note that among the records provided to Mr. McCarter, an August 7, 2023 letter from the Boston Public Health Commission to the Inspectional Services Department states that “staff has sent a floorplan and information about fire safety systems in the space.” In his appeal petition, Mr. McCarter indicates that, among other items, he has not received a copy of the referenced floor plan. Consequently, it remains unclear whether the City possesses additional records responsive to this request. The City must clarify this. I understand a staff attorney of the Public Records Division attempted to clarify this matter with the City, but was not able to resolve the matter prior to this determination. Conclusion Accordingly, the City is ordered to provide Mr. McCarter 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.

Shawn A. Williams, Esq. SPR24/0139 Page 3 January 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter