Ray Fuschetti v. Boston, City of - Public Records (SPR 20250614)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2025 SPR25/0614 Grace Jung Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Grace Jung: I have received the petition of Ray Fuschetti 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 February 11, 2025, Mr. Fuschetti requested: For the 2024 bike count data, I request that it be provided in a spreadsheet format with the following specifics: [1] Address of each count location[;] [2] Date and time frames/windows of the counts, including specific data for all day, morning, and evening periods[;] [3] The number of bikes counted during each specified period each day[;] [4] Weather conditions for each day of counts[;] [5] Daily totals, afternoon totals, and evening totals at each location, as well as monthly aggregates for each location[;] [6] Percentage of total vehicles that were bicycles, detailed separately for all day, morning, and evening counts[;] [7] Comparison stats for the same locations and time frames from 2022 and 2023 to facilitate year-over-year analysis… The City responded on March 3, 2025. Unsatisfied with the response, Mr. Fuschetti petitioned this office and this appeal, SPR25/0614, 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 SPR25/0614 Page 2 March 14, 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 March 3rd response In its March 3, 2025 response, the City assigned reference number R000702-021125 to this request and advised Mr. Fuschetti, “[t]he Boston Transportation Department is still processing the data from 2024, which is why it has not been posted on the City website yet; therefore, there are no responsive records for this request. However, when the data becomes available, this information can be found at https://www.boston.gov/departments/boston- bikes/bike-data.” Current Appeal In his appeal, Mr. Fuschetti states: While I understand that the data is still being processed, I believe the response does not fully comply with the Massachusetts Public Records Law, as the requested records are likely in existence. Specifically: [1] The City likely possesses raw data that has not yet been processed into its final form for public release. Under the law, if records exist—regardless of their format or processing status—they are still subject to release. A response indicating ‘no responsive record’ implies that the City has not yet processed the data into a usable form, but that does not absolve them from providing the raw, unprocessed data, as long as it exists. [2] No timeline for when the data will be made available was provided in the response. Public records requests require a timeline, or at least a clear indication of when the requested records will be available. The absence of this information leaves uncertainty regarding when the records will be produced.

Grace Jung SPR25/0614 Page 3 March 14, 2025 [3] Data likely exists based on your statement that the Boston Transportation Department is ‘processing the data.’ Given that the data collection process would have already occurred, and the information should be in the possession of the department, I believe I am entitled to the records in their raw form while they are being processed for public release. I respectfully request that the Boston Transportation Department fulfill this request by providing the raw data that exists, even if it is not yet fully processed or posted on the website. If the data is not immediately available, I would appreciate an estimated timeline for when I can expect it. Based on Mr. Fuschetti’s appeal, it is unclear if the City possesses any records responsive to the request. 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). If the City does possess 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). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Fuschetti with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. Fuschetti 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: Ray Fuschetti