Brian McCarter v. Boston, City of - Public Records (SPR 20251753)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1753 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 Brian McCarter 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 24, 2025, Mr. McCarter requested “all permits and emails in regards to 727 Massachusetts Avenue shelter in the last 12 months.” In an email to the City on April 19, 2025, Mr. McCarter clarified the following: To clarify: - This includes any Certificate of Inspection or other approval, regardless of terminology, that enabled temporary use or occupancy of the space. - It also includes any internal or external communications (email or otherwise) discussing or authorizing such use. The City responded on March 24, 2025, and assigned reference number R001538-032425 to this request. Unsatisfied with the City’s response, Mr. McCarter petitioned this office, and this appeal, SPR25/1753, 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, § 7(26). 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 SPR25/1753 Page 2 July 2, 2025 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 24th Response In its March 24, 2025 response, the City states that the City has “no recent permit application for 727 Mass Ave 717-745 Mass Ave the last permit is from 2022 it is a gas permit g1295311 from 9/7/2022.” Records in Existence; Possession, Custody or Control Please be 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 correspondence included with his appeal petition, Mr. McCarter argues the following: There were temporary use permits issued for it to be a shelter on multiple occasions in the last few years. . . . There were at least two certificates of inspection issued on this parcel that I know of with at least one of them being issued in this limited time frame. . . . The City has previously acknowledged applying for and receiving permission for temporary use of this property in multiple public forums. With his appeal petition, Mr. McCarter also includes a copy of a November 1, 2024 letter from the Boston Public Health Commission, and argues that “[a] formal letter from BPHC is in the public record and is attached herewith for reference. It is not credible that no permitting or communication occurred within ISD [City of Boston Inspectional Services Department] in response to a request of this magnitude.” Based on the City’s response, and the information provided in Mr. McCarter’s appeal petition, it is unclear whether the City possesses records responsive to the request. If the City

Grace Jung SPR25/1753 Page 3 July 2, 2025 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) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the City is ordered to provide Mr. McCarter 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. McCarter 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: Brian McCarter