Massachusetts Free Press v. Boston, City of - Public Records (SPR 20240531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 29, 2024 SPR24/0531 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Massachusetts Free Press 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 June 25, 2023, the requestor sought: …[a]ll records, including but not in any way limited to: Emails; Voicemails; Audio of Recorded phone calls, and all metadata for the phone calls themselves (ex: time call made, all phone numbers involved in the call, service provider, this is not [an] exhaustive list just an example to give [the City] an idea of what I mean by metadata); Texts in the possession of the [City]; Any paper record; Meeting minutes, and all other records held by the [City]; That contain [fourteen] key words… Prior Appeals The requested records were the subject of prior appeals. See SPR23/1818 Determination of the Supervisor of Records (August 18, 2023) and SPR23/2740 Determination of the Supervisor of Records (November 27, 2023). In my November 27th determination, I ordered the City to provide the requestor with a response. On January 3, 2024, the City provided a response. Unsatisfied with the City’s response, the requestor petitioned this office and the current appeal, SPR24/0531, 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 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. SPR24/0531 Page 2 February 29, 2024 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 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 3, 2024 response The City’s January 3rd response states, “[t]he City stands by its previous response. The searched conducted for this request has yielded over 100,000 records that contain one or more of the names identified in your request. As stated before, your request seeks information associated with a news event that would likely be identified in numerous email records. As such, your request does not comply with the Massachusetts [P]ublic [R]ecords [L]aw and its [R]egulations, as it is overly broad and vague…” The City’s February 21, 2024 response Subsequent to the opening of the current appeal, the City provided a supplemental response on February 21, 2024 to the requestor. The City asserts, “[w]e have alerted representatives from the department regarding this matter in an effort to resolve any outstanding issues regarding your June 25, 2023 public records request. [W]e will provide an update to you once additional information is provided to [my office] by the department.” Upon receipt of the City’s February 21st response, the requestor emailed this office asserting, “I respectfully request that the [Supervisor] continue with my appeal and issue a determination as I have still not been provided with responsive documents …” 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:

Shawn A. Williams, Esq. SPR24/0531 Page 3 February 29, 2024 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). Where the requestor submitted the request on June 25, 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Further, I encourage the parties to communicate in order to facilitate producing records efficiently and affordably. The requestor may wish to narrow the request or include additional factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). 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