John Laliberte v. Boston, City of - Public Records (SPR 20241249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2024 SPR24/1249 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Attorney John La Liberte, on behalf of Pioneer Institute Inc., 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 February 27, 2024, Mr. LaLiberte requested: (1) All records that refer, concern or are related to that certain program offered by the Boston Public Schools (“BPS”) and/or the City of Boston (the “City”) announced on or about February 12, 2024 whereby BPS students are permitted free access to Boston area museums and attractions (“BPS Sundays”) including but not limited to the Boston Aquarium, the Boston Museum of Fine Arts, the Boston Children’s Museum, the Boston Science Museum, and other such entities or attractions (“Boston Area Cultural Institutions”). (2) All communications, including electronic communications, concerning or related [to] BPS Sundays by or between the Office of Mayor Wu, the City Council, the Boston School Committee, any of the agents or employees of the foregoing, and BPS. (3) All communications, including electronic communications, concerning or related to BPS Sundays by or between the Office of Mayor Wu, the City Council, the Boston School Committee, BPS and any Boston Area Cultural Institutions. (4) All communications, including electronic communications, concerning or related to BPS Sundays that refer, concern or relate in any manner to including or excluding children residing in Boston that attend charter schools, that participate in the METCO program, or that attend sectarian or religious schools from participating in BPS Sundays. (5) All documents, including electronic communications, concerning or related to the funding of BPS Sundays, including any payments, reimbursements or other financial transactions with or on behalf of or to Boston Area Cultural Institutions 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. SPR24/1249 Page 2 May 9, 2024 related to BPS Sundays. The City provided a response on March 12, 2024, and again on April 2, 2024, stating it would take more time to respond. Unsatisfied with the City’s responses, Attorney La Liberte petitioned this office and this appeal, SPR24/1249, 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. 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 March 12th and April 2nd Responses In its March 12, 2024 response, the City stated that “[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.” In its April 2, 2024 response, the City again stated that “[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.” 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. SPR24/1249 Page 3 May 9, 2024 identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, … for 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 Attorney La Liberte submitted his request on February 27, 2024, and the City has not yet provided responsive records, nor cited an exemption for withholding records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). 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: John La Liberte, Esq.