John Hawkinson v. Cambridge, City of - Office of the City Clerk (SPR 20251017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2025 SPR25/1017 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of John Hawkinson appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 27, 2025, Mr. Hawkinson requested “… a list of all building permits applied-for since Feb. 1, 2025 that are categorically excluded from the data portal[.]” On March 13, 2025, Mr. Hawkinson clarified that “… if [the City] believe[s] producing a list is a burden, [the City may] produce the actual records, not a ‘list’ of them.” Mr. Hawkinson emphasized that he would “… prefer [the responsive records] produced in structured form.” Prior Appeal This request was the subject of a prior appeal. See SPR25/0716 Determination of the Supervisor of Records (March 25, 2025). In my March 25th determination, I found that the City intended to provide Mr. Hawkinson with a further response, and ordered it to do so within ten business days. The City responded on April 11, 2025. Unsatisfied with the response, Mr. Hawkinson petitioned this office and this appeal, SPR25/1017, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on April 18, 2025. 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 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

Seah Levy SPR25/1017 Page 2 April 25, 2025 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 April 11th Response In its April 11, 2025 response, the City informed Mr. Hawkinson that it did not possess a list of permits responsive to his request. The City further stated that the Public Records Law did not require the creation of such a list. Current Appeal In his April 11, 2025 petition to this office, Mr. Hawkinson stated, “[t]he City may provide the list of permits or it may simply provide the permits themselves.” In its April 18, 2025 response, the City reiterated that it did not possess a list of permits responsive to the request, and informed Mr. Hawkinson that it was willing to provide between 100 and 150 building permit applications responsive to his request. The City estimated that it would require approximately three weeks to provide the responsive records. In an email communication to this office on April 18, 2025, Mr. Hawkinson objected to the City’s proposed timeline. Mr. Hawkinson further stated that he would prefer to receive a list of the responsive records, rather than the records themselves. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends only 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).

Seah Levy SPR25/1017 Page 3 April 25, 2025 Timeliness of Production of 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 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. Hawkinson’s modified request was submitted on March 13, 2025, and the City has not provided responsive records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Mr. Hawkinson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Hawkinson may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson Paul Kawai, Esq.