Andrew Kaye v. Boston, City of - Public Records (SPR 20241676)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1676 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 Andrew Kaye 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 March 5, 2024, Mr. Kaye requested: …a record of every car that was ticketed and/or towed that meets the following criteria: Location: Tremont Street; Date: 11/13/23; Hours: Between 7PM – Midnight. I am requesting: [1] Time of violation; [2] Violation Code and Description; [3] Was the vehicle also towed; and, [4] Vehicle and owner information.” In addition, in his March 5th request, Mr. Kaye informed the City, “I require this information to find witnesses for a legal matter.” The City acknowledged the request on March 5, 2024, and on March 19, 2024, the City provided a response. Unsatisfied with the City’s March 19th response, Mr. Kaye petitioned this office and this appeal, SPR24/1676, was opened as a result. 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. SPR24/1676 Page 2 June 17, 2024 Status of the requestor; Reason for the request It is important for Mr. Kaye to understand that his interest in the responsive records does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Kaye’s status and reason for the request will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 March 19th response In its March 19, 2024 response, the City asserted, “[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 Mr. Kaye’s June 3, 2024 petition, he states, “I am appealing because I have never received the requested records and it has been nearly 3 months…” Timeliness in 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

Shawn A. Williams, Esq. SPR24/1676 Page 3 June 17, 2024 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 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 Mr. Kaye submitted his request on March 5, 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). The City should provide Mr. Kaye with a date in which the City will commence production of the records. In addition, where possible the City should provide the records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Mr. Kaye with a response to his 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. Mr. Kaye 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: Andrew Kaye