Ray Fuschetti v. Boston, City of - Public Records (SPR 20251171)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 7, 2025 SPR25/1171 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 Ray Fuschetti, of Pedal Safe Boston, 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 March 10, 2025, Mr. Fuschetti requested the following: [1] Copies of records or documents related to the removal of bike lane flex posts at the following locations within the City: [a] Massachusetts Avenue[;] [b] Arlington Street[;] [c] Summer Street[.] [2] Any public statements issued by the City or the mayor’s office regarding the removal of these flex posts[;] [3] Internal communications, including emails, from the mayor’s office or any relevant city department, regarding these flex posts[;] [4] [R]ecords for any other bike lane flex posts removed within the past six weeks, including: [a] Specific locations of each removed flex post[;] [b] Dates and reasons for each removal[;] [c] Information indicating whether these removals are considered temporary or permanent[.] The City provided responses on March 10 and March 24, 2025, assigning the request reference number R001239-031025. Unsatisfied with the City’s responses, Mr. Fuschetti petitioned this office and this appeal, SPR25/1171, was 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

Grace Jung SPR25/1171 Page 2 May 7, 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 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. See 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. See 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 10th and March 24th Responses In its March 10, 2025 response, the City provided an acknowledgement of the request and also provided the request reference number. In its March 24, 2025 response, the City stated, “[t]he City of Boston has received your request for public records …. Due to the nature of your request, additional time is needed. As such, the City will need up to, but no more than, fifteen (15) additional business days to review and process your request.” Current Appeal In his appeal, Mr. Fuschetti states, “[o]n March 24, 2025, the City notified me that they were invoking a ten-business-day extension. However, more than 25 business days have now passed since that communication and I have not received any further updates or a substantive response.” Timeliness in Providing 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:

Grace Jung SPR25/1171 Page 3 May 7, 2025 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. Fuschetti submitted his request on March 10, 2025, and the City has not provided the 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). Consequently, I find the City must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. 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 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. 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