Liam T. O'Connell v. Boston, City of - Public Records (SPR 20250467)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2025 SPR25/0467 Grace Jung Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Ms. Jung: I have received the petition of Attorney Liam T. O’Connell 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 October 16, 2024, Attorney O’Connell requested the following: Any and all records related to contract work performed on Brimmer Street since January 1, 2021, to include paving, gas, sewer, electric, garbage, and any and all police details hired for same. This request specifically includes the contracts awarded for the work and any and all change(s) to said contracts. On October 23, 2024, Attorney O’Connell clarified that “the request’s scope is focused on the Brimmer Street block between Pickney Street and Mount Vernon Street, so #1 through #41 Brimmer Street.” I understand the City has assigned reference number R004226-101624 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/0057 Determination of the Supervisor of Records (January 21, 2025). In my January 21st determination, I found that the City had not met its burden in responding to the request. Subsequently, the City responded on February 4, 2025. Unsatisfied with the City’s response, Attorney O’Connell petitioned this office, and this appeal, SPR25/0467, 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 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

Grace Jung SPR25/0467 Page 2 February 28, 2025 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 February 4th Response In its February 4, 2025 response, the City provides copies of numerous responsive permits and explains “please see the attached 12 permits for work on Brimmer St. The permit will show if a police detail was requested for the work.” In his appeal petition, Attorney O’Connell contends that “the City’s purported Response is not in compliance with the Public Records Law, and the City has marked the status of said request (on the City’s online Public Records Center) as ‘Admin Closed.’” Records in Existence; Possession, Custody, or Control The City is advised that 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). In this case, where Attorney O’Connell requested “all records related to contract work,” and the City has provided only copies of permits, it is unclear whether the City possesses additional records responsive to Attorney O’Connell’s request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold,

Grace Jung SPR25/0467 Page 3 February 28, 2025 and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the City is ordered to provide Attorney O’Connell with a response to the 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. Sincerely, Manza Arthur Supervisor of Records cc: Liam T. O’Connell, Esq.