John Hawkinson v. Cambridge, City of - Office of the City Clerk (SPR 20251215)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 12, 2025 SPR25/1215 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 Appeals This request was the subject of prior appeals. See SPR25/0716 Determination of the Supervisor of Records (March 25, 2025) and SPR25/1017 Determination of the Supervisor of Records (April 25, 2025). In my April 25th determination, I found that the City had not met its burden in responding to the request, and ordered it to provide a further response within ten business days. The City responded on May 1, 2025. Unsatisfied with the response, Mr. Hawkinson petitioned this office and this appeal, SPR25/1215, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on May 8, 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 SPR25/1215 Page 2 May 12, 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 May 1st Response In its May 1, 2025 response, the City produced twenty building permits “… which were applied for between the dates of February 1, 2025 and February 27, 2025, which have not yet been added to the Open Data Portal.” Current Appeal In his May 1, 2025 petition to this office, Mr. Hawkinson contended that the City had failed to produce all of the responsive records, and that it had failed to provide the records in his preferred format. In its May 8, 2025 response, the City produced a list of building permits responsive to Mr. Hawkinson’s request. The City confirmed that Mr. Hawkinson had been provided with all records responsive to his request. 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). Conclusion Given that all responsive records have been provided, and this office has no authority to compel the City to create records, I will now consider this administrative appeal closed. If Mr. Hawkinson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66,

Seah Levy SPR25/1215 Page 3 May 12, 2025 §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: John Hawkinson