Andrew Kaye v. Boston, City of - Public Records (SPR 20241678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1678 Shawn A. Williams, Esq. Director of 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: …the following information for the years 2021, 2022, and 2023, [f]or all parking violations: [1] The number of violations appealed VIA MAIL, during each given year and the number of those appeals that were successful[;] [2] The number of violations appealed VIA IN PERSON HEARING during each given year and the number of those appeals that were successful[;] [3] The number of violations appealed VIA VIRTUAL HEARINGS during each given year and the number of those appeals that were successful. For example: In 2021, 12000 parking violations were appealed by mail and 4000 of those appeals were successful[;] In 2022, 13500 parking violations were appealed by mail and 3000 of those appeals were successful[;] [and,] In 2023, 14000 parking violations were appealed by mail and 5000 of those appeals were successful. On March 5, 2024, the City acknowledged the request, and on March 19, 2024, provided Mr. Kaye with a response stating, “… [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 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. SPR24/1678 Page 2 June 17, 2024 to review and process your request.” On June 3, 2024, Mr. Kaye petitioned this office asserting, “…I never received records and it has been 3 months…” As a result of Mr. Kaye’s June 3rd petition, this office opened the current appeal. While this appeal was pending, the City provided a supplemental response on June 12, 2024. 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 June 12th Response On June 12, 2024, the City provided a response stating, “[the City has] alerted representatives from the department regarding this matter in an effort to resolve any outstanding issues regarding your public records request. [The City] will provide an update to you once additional information is provided to [the Corporation Counsel’s] by the department. A copy of any update, as well as this communication will be provided to the Supervisor of Records.” 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 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. SPR24/1678 Page 3 June 17, 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 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). 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