Anne McKinnon v. Boston Planning & Development Agency (SPR 20242778)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2024 SPR24/2776; SPR24/2778 Danielle Cournoyer Public Record Specialist Boston Planning & Development Agency 1 City Hall Square, Floor 9 Boston, MA 02201 Dear Ms. Cournoyer: I have received the petitions of Anne McKinnon appealing the response of the Boston Planning & Development Agency (Agency) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2024, Ms. McKinnon requested the following: SPR24/2776 communication concerning proposed White Stadium project transportation plans (memoranda, letters, email, etc.) between any representative of Boston Transportation Dept., Boston Public Works Sept., Operations/Public Facilities/Property Management departments and any representative of the Boston Planning and Development Agency between August 1, 2023, and February 2, 2024. SPR24/2778 communication concerning proposed White Stadium project transportation plans (memoranda, letters, email, etc.) between any representative of Boston Transportation Dept., Boston Public Works Sept., Operations/Public Facilities/Property Management departments and any representative of the Boston Planning and Development Agency between February 2, 2024, and July 2, 2024. The Agency responded on October 7, 2024. Unsatisfied with the Agency’s response, Ms. McKinnon petitioned this office and these appeals, SPR24/2776 and SPR24/2778, were 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

Danielle Cournoyer SPR24/2776; SPR24/2778 Page 2 October 18, 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, § l0A(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 Agency’s October 7th Response In its October 7, 2024 response, the Agency provided Ms. McKinnon with emails responsive to her request. Current appeal In her appeal, Ms. McKinnon stated, “I got a package today that consists solely of emails… I believe the response is not complete.” Based upon a conversation between a Public Records Division staff member and an Agency representative, the Agency confirmed that it has no additional records responsive to the request. The Agency further advised that Ms. McKinnon has made additional requests since this appeal was filed and the Agency is in the process of fulfilling those requests. No Duty to Create Records Under the Public Records Law, the Agency is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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).

Danielle Cournoyer SPR24/2776; SPR24/2778 Page 3 October 18, 2024 Conclusion Accordingly, where the Agency has confirmed that it does not possess additional records responsive to Ms. McKinnon’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Ms. McKinnon is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Anne McKinnon