Public Records v. Boston Public Health Commission (SPR 20242295)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2024 SPR24/2295 Javier R. Salas, Esq. Assistant General Counsel Boston Public Health Commission 1010 Massachusetts Avenue, 6th Floor Boston, MA 02118 Dear Attorney Salas: I have received the petition of Public Records (requestor) appealing the response of the Boston Public Health Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 30, 2024, the requestor sought “… records that would indicate the cost per bed to build and operate various shelters.” On August 13, 2024, the Commission responded. Unsatisfied with the Commission’s response, the requestor petitioned this office, and this appeal, SPR24/2295, 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. Att’y 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. 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

Javier R. Salas SPR24/2295 Page 2 August 23, 2024 The Commission’s August 13th Response In its August 13, 2024 response, the Commission stated that it would “… require 15 additional business days for review and production of the requested records, as provided under 950 CMR 32.06(2)(i).” Current Appeal In the requestor’s August 13, 2024 petition, the requestor stated, “BPHC cited 950 CMR 32.06(2)(i) for the delay request, but did not provide one of the allowed reasons under that section of the law, thereby invalidating the request. Given that no allowed reason has been provided for the delay, and 10 business days have passed (original request attached), please order the release of these records.” Where the Commission has indicated that it intends to provide a response within the allowed statutory timeframe, it is unclear the basis of the requestor’s appeal. See G. L. c. 66, § 10(b)(vi) (records access officer may 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). Conclusion The Commission is ordered to provide a response to the request in compliance with the Public Records Law and its Regulations. If issues remain once the requestor receives the response, the requestor may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Public Records