Heather Hoffman v. Cambridge, City of - Law Department (SPR 20240175)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0175 Seah Levy Records Access Officer City of Cambridge Law Department 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Heather M. Hoffman, Esq. appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 26, 2023, and again on November 7, 2023, Attorney Hoffman requested, “…any currently effective [C]ity policy regarding how to handle public [records] requests for information that are neither submitted directly to the public records officer nor explicitly labeled public records requests.” Prior Appeals The requested records were the subject of prior appeals. See SPR23/3036 Determination of the Supervisor of Records (January 2, 2024) and SPR24/0012 Determination of the Supervisor of Records (January 18, 2024). In my January 18th response, I learned that the City provided a further response to Attorney Hoffman on January 12, 2024. Unsatisfied with the City’s January 12th response, Attorney Hoffman petitioned this office, and this appeal, SPR24/0175, was opened as a result. Subsequently, I learned that the City provided a further response to Attorney Hoffman on January 26, 2024. 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 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

Seah Levy SPR24/0175 Page 2 February 2, 2024 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 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. Current appeal In her appeal petition, Attorney Hoffman states, “I must once again point out that the City of Cambridge has misrepresented the materials already provided in my previous response. The one they chose not to provide to me, but which I obtained from someone else, makes it quite clear that there is some directive that postdates the two memos from [identified] City Managers that requires all requests to be sent to the Public Records Access Officer and handled by her, rather than the more public-friendly procedure that the memos describe. That is what I'm looking for, and I find it quite disturbing that the City keeps denying that it exists when they had no problem telling someone who’s not me that that is the policy. I hereby renew my request that the Supervisor of Records order the City of Cambridge to provide the official statement of that policy to me without further delay.” The City’s January Responses In its January 12, 2024 response, the City stated as follows: The City has clearly articulated on multiple occasions that the City does not have a written policy responsive to the Requestor’s request. See Exhibit A, Email correspondence from Seah Levy to Heather Hoffman dated November 7, 2023, Exhibit B, correspondence from Seah Levy to Heather Hoffman dated November 7, 2023, and Exhibit C, correspondence from Seah Levy to Heather Hoffman dated December 20, 2023. Prior to responding to the Requestor, the City conducted a reasonable and diligent search of its records, including but not limited to, discussing the request with the then City Solicitor and various Department Heads, all of which indicated there were no responsive documents to Requestor’s request. Levy further conducted email searches for individuals that might have access to documents (if they existed) responsive to Requestor’s request. Levy’s searches yielded over 16,000 documents, all of which were non- responsive to the Requestor’s specific request. On November 7, 2023, the City produced two documents: 1) a memorandum to City staff relating to mandatory trainings that would be held regarding changes in the Public Records Request law, and 2) a memorandum to City staff advising of the appointment of the City’s new Public Records Access Officer. These documents were not responsive to the

Seah Levy SPR24/0175 Page 3 February 2, 2024 request (because there is no written policy) but are ancillary to the City’s practice of responding to the public’s request for documents. The City further asserted, “[a]lso, the Requestor’s claim that the City provided a different response to another requestor is incorrect. In fact, the portion of the email forwarded by the Requestor is consistent with Levy’s November 7th email, and with the documents the City produced as part of its supplemental response. Here the Requestor is seeking a document that, to the City’s knowledge, does not exist. The City conducted a reasonable and diligent search, and has provided multiple courtesy responses beyond what is required under the Public Records law. The ancillary documents produced by the City date back six to seven years. The City produced documents to the Requestor in unredacted form and is not withholding any responsive documents.” In its January 26, 2024 response, the City repeated its January 12th response and asserted, “[t]his now constitutes the City’s third response to Requestor’s demands, which remains the same as its prior ones: That after review and to the City’s knowledge, there are no written documents responsive to the Requestor’s request. . . .” No Duty to Create Records Attorney Hoffman is advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). Whereas the City has indicated in its responses that it does not possess records responsive to Attorney Hoffman’s request, I find the City has met its burden in responding to the request. Conclusion Accordingly, where the City has confirmed that it has no records responsive to Attorney Hoffman’s October 26th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Attorney Hoffman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Seah Levy SPR24/0175 Page 4 February 2, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Heather M. Hoffman, Esq. Diane O. Pires, Esq.