Shannon Llewellyn v. Boston, City of - Public Records (SPR 20241509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2024 SPR24/1509 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 Shannon Llewellyn 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 January 6, 2024, Ms. Llewellyn requested “all text messages to and from [a named individual] for March and April 2022.” Prior Appeal This request was the subject of a prior appeal. See SPR24/0192 Determination of the Supervisor of Records (February 2, 2024). In my February 2nd determination, I found it was unclear whether the City possessed records responsive to the request. Accordingly, I ordered the City to provide a response clarifying whether records exist. On May 16, 2024, the City provided a response. Unsatisfied with the City’s response, Ms. Llewellyn petitioned this office and this appeal, SPR24/1509, 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. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. SPR24/1509 Page 2 June 3, 2024 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 16th response In its May 16, 2024 response, the City stated, “… [p]lease not that there are no responsive records for B000065-010824 [the City’s reference number for the January 6th request for the text messages]. Current Appeal In her petition, Ms. Llewellyn asserts, “[a]s I have stated previously, this assertion regarding records not being available is false, and I want to appeal that response. Other people and or other entities filed public record requests with the [City] and got his text messages in their records. He has a cell phone. I want this text messages.” On May 29th, Ms. Llewellyn emailed Attorney Williams and this office, contending, “[w]anted to reply back for the umpteenth time that this [May 16th response] for B000065- 010824 is FALSE. To indicate that [the January 6th request] has no responsive records is not true. I would like to proceed to appeal this response from [the City]. As I have already obtained ONE TEXT from [the individual’s] cell phone for that time frame via another Public Record Request…” No Duty to Create Records Please be 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). Conclusion Where the City has confirmed that it does not possess records responsive to the request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Ms. Llewellyn is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior

Shawn A. Williams, Esq. SPR24/1509 Page 3 June 3, 2024 Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: Shannon Llewellyn