Massachusetts Free Press v. Boston, City of - Public Records (SPR 20240530)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2024 SPR24/0530 Shawn A. Williams, Esq. Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201-2014 Dear Attorney Williams: I have received the petition of Massachusetts Free Press (“requestor”) 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, the requestor sought, “[e]mails containing the key word: [an identified individual]…The time span for the records requested is the year 2022.” The City provided a response on December 11, 2023. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/0530, was opened as a result. Previous Appeal The requested records were subject to a previous appeal. See SPR23/2741 Determination of the Supervisor of Records (November 27, 2023). In my November 27th determination, I ordered the City to provide a response to the requestor. The City provided a response on December 11, 2023. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/0530, 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). 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. SPR24/0530 Page 2 March 1, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. If there are any fees associated with a response a written, good faith estimate must be provided. See 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 December 11th response In its December 11, 2023 response, the City stated, “[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.” Current Appeal In the appeal, the requestor stated, “[t]he city then stated in December that it needed 15 days for the request which have since long passed. This appeal formally requests the city of Boston be ordered to provide a response.” 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 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). Whereas the requestor submitted their request on October 6, 2023, it is unclear why the City has not provided the responsive records. 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

Shawn A. Williams, Esq. SPR24/0530 Page 3 March 1, 2024 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). Consequently, I find the City must provide an estimated date as to when it intends to complete the search and provide the outstanding 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. Conclusion Accordingly, the City is ordered to provide the requestor 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. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Massachusetts Free Press