Erin Woods v. Boston, City of - Public Records (SPR 20241377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 20, 2024 SPR24/1377 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Erin Woods 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 1, 2024, Ms. Woods requested “…[t]he National Historic Preservation Act, section 106 report for the Bunker Hill Housing Redevelopment Project. I am not looking for the DPIR report, but the actual Sec. 106 report required by Federal Preservation Law. Also, Section 106 reports filed for any proposed projects under review or approved by the BPDA in the neighborhood of Charlestown going back 3 years from today’s date.” On February 7, 2024, the City responded to Ms. Woods, stating, “[t]he records you seek are not in the possession of the City of Boston. You may consider contacting the Boston Planning & Development Agency (BPDA), which is not a Department of the City of Boston. You may find the following link helpful in making your request directly to the BPDA. . . .” On March 7, 2024, Ms. Woods contacted the City again, this time, she clarified her request as: The Massachusetts Historic Commission stated [i]n the case of the Bunker Hill Redevelopment Project, the City’s Department of Neighborhood Development (now called the Mayor’s Office of Housing) was authorized by HUD to carry out its Section 106 of the National Historic Preservation Act (36 CFR 800) responsibilities. DND conducted a Section 106 review in 2016 and made a finding of no historic properties affected, to which the MHC concurred [,] in response to a public record request sent to regarding the Section 106 report. Did the Mayor’s Office of Housing (formerly the DND) complete the Section 106 in 2016? Please forward the Section 106 report. 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. SPR24/1377 Page 2 May 20, 2024 The City provided a March 7th acknowledgment of Ms. Woods’ March 7th request, and provided a reference number for tracking purposes. On March 21st, the City provided Ms. Woods with a response asserting, “[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.” As a result of the City’s March 21st response, and not receiving any records by May 2nd, Ms. Woods petitioned the Supervisor of Records, and this appeal was opened. 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. 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 May 10th Response Subsequent to the opening of this appeal, I learned the City provided Ms. Woods with a response on May 10, 2024, asserting, “[we] have alerted representatives from the Mayor’s Office of Housing regarding this matter in an effort to resolve any outstanding issues regarding your March 7, 2024 public records request. [The City] will provide an update to you once additional information is provided to [this office] by the department.” 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

Shawn A. Williams, Esq. SPR24/1377 Page 3 May 20, 2024 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 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 Ms. Woods submitted her request on March 7, 2024, 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 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the City is ordered to provide Ms. Woods with a response to her 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. Ms. Woods 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: Erin Woods