Ray Fuschetti v. Boston, City of - Public Records (SPR 20251679)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2025 SPR25/1679 Grace Jung Director of Public Records 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 April 28, 2025, Mr. Fuschetti requested “the following records related to the Western Avenue bike lane projects constructed in 2024 and 2025:” [1] Any cost-benefit analyses, financial impact studies, or economic assessments related to the Western Avenue bike lane projects. [2] Any studies, reports, memos, or correspondence evaluating the financial impact of parking space removal or changes associated with the projects. [3] Any documents concerning anticipated or actual economic impacts on nearby small businesses resulting from the projects. [4] Any analyses or documents comparing the economic costs (such as parking loss or business disruption) against the projected benefits (such as increased cycling traffic, safety improvements, or environmental impacts). [5] Any studies, reports, memos, correspondence, or plans concerning efforts to replace lost parking spaces or to provide alternative parking for customers, residents, or businesses affected by the Western Avenue bike lane projects. [6] Any notes, minutes, summaries, or correspondence from community meetings, public meetings, or meetings with business owners where the Western Avenue bike lane projects were discussed, including feedback or concerns raised. 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 SPR25/1679 Page 2 June 26, 2025 [7] Any documents detailing if, when, and how feedback from community members, business owners, or other stakeholders was incorporated into changes to the projects. [8] Any documents, correspondence, meeting notes, public comments, surveys, or feedback submitted by residents regarding parking loss, parking availability, or parking replacement plans related to the Western Avenue bike lane projects. [9] Any studies, surveys, reports, memos, or analyses regarding parking space utilization, parking occupancy rates, or foot traffic counts to local businesses along Western Avenue before and after the bike lane projects. [10] Any studies, counts, reports, or assessments of bicycle traffic volume related to the Western Avenue bike lane projects, including before-and-after data if available. [11] Any internal communications, including emails, text messages, or chat messages, regarding the Western Avenue bike lane projects, including but not limited to impacts on businesses, parking, or residents. [12] Any draft versions of reports, studies, plans, or assessments related to the Western Avenue bike lane projects. [13] Any contracts, invoices, or payment records for consultants retained to assess economic impacts, transportation impacts, or bicycle traffic counts related to the Western Avenue bike lane projects. [14] Any pre-project planning documents discussing anticipated impacts on small businesses or parking availability. I am requesting all responsive records from the beginning of the planning process through the present. The City responded on May 12, 2025 and June 11, 2025, and assigned reference number R002146-042825 to this request. Unsatisfied with the City’s response, Mr. Fuschetti petitioned this office, and this appeal, SPR25/1679, 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 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,

Grace Jung SPR25/1679 Page 3 June 26, 2025 § 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 June 11, 2025 Response In its May 12, 2025 response, the City indicated that it would require additional time to respond. In its June 11, 2025 response, the City argues the following: In your request, you seek “any studies, cost benefit analyses, reports, memos, documents, communications and other records related to the Western Avenue bike lane projects.” Requests that call for all records “related to” or “regarding” a broad topic such as this do not describe the records sought with reasonable particularity. Your request “calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘[related to]’ the category of materials requested.” Chawla, at 2. Further, there is an expectation that a requester will be reasonable in requests for public records. Friedman, quoting Assassination Archives & Research Ctr., Inc. v. Central Intelligence Agency, 720 F. Supp. 217, 219 (D.D.C. 1989). You specifically state in your request that you seek “any documents concerning anticipated or actual economic impacts on nearby small businesses resulting from the projects” and “any analyses or documents comparing the economic costs (such as…) against the projected benefits (such as…).” This portion of your request requires the City of Boston to conduct an unreasonable search to obtain the information of all the nearby small businesses that could be responsive to your request, what constitutes an economic impact related to the bike lane projects, and all of the possible economic costs and projected benefits. . . . For a government employee to identify the relevant parties belonging to the categories listed, names and email addresses would be required. Since this information is not provided, a government employee has no way of reasonably identifying the records you seek.

Grace Jung SPR25/1679 Page 4 June 26, 2025 Current Appeal In his appeal petition, Mr. Fuschetti argues the following My request was clearly outlined. It focused on a specific location (Western Avenue), a specific timeframe (2024 and 2025), and included a list of distinct and well-defined categories of records, such as economic assessments, public meeting notes, and parking data. Each item describes specific types of documents that should be easily understood by the responding agency. This is consistent with the standards set in Chawla and 950 CMR 32.06. The City claims they would be unable to identify responsive records without names or email addresses. That assertion is not reasonable. These records concern public meetings, communications between public officials, and studies or data related to a major city project. They should be accessible without requiring the requester to identify individual staff or attendees by name. Finally, the City did not attempt to clarify the request, propose a narrower scope, or issue a fee estimate. Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” The City is further 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). Further, 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, Mr. Fuschetti has provided descriptions of the categories of records he is seeking, including, among other things, a date range, the specific subject matter, and the specific types of documents he seeks. While his request may potentially result in a large volume of

Grace Jung SPR25/1679 Page 5 June 26, 2025 responsive records, he has provided sufficient particularity required to identify the documents he is seeking. This office encourages Mr. Fuschetti and the City to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). 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 further 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