Scott Kmack v. Boston, City of - Public Records (SPR 20251935)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2025 SPR25/1935 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 Scott Kmack appealing the response of the City of Boston to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 30, 2025, Mr. Kmack requested: [1] The responsible party for placing the asphalt curbs and temporary walkway at …Boylston Street as of May 17 (with work potentially beginning prior to that date)[;] [2] The permit number for the work at that time and the dates for the permit[;] [3] A copy of the CMP that was filed and approved by the city and an[y] addendums that were made by the city after May 17[;] [4] Updated safety requirements / safety inspections after May 17th[.] The City responded on June 10, 2025, June 24, 2025, July 1, 2025, and July 2, 2025, assigning the request reference number R002722-053025. Unsatisfied with the City’s responses, Mr. Kmack petitioned this office and this appeal, SPR25/1935, 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). 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. 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 SPR25/1935 Page 2 July 11, 2025 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 10th, June 24th, July 1st, and July 2nd Responses On June 10, 2025, following a clarification message from Mr. Kmack, the City provided two responsive records via email and stated, “[w]e hope this information helps.” In reply to the City, Mr. Kmack provided documentation showing “significant active work being done… prior to May 30,” and stated, “[u]nfortunately, it still doesn’t answer the question of who was doing the work at …Boylston St. and placing the temporary walkway and asphalt curbs there as early as May 17.” In its June 24, 2025 response, the City provided two responsive permits and stated: I have just received communication from Public Works regarding your two questions, and I have included their answer below: [1] …The original excavation permit for [an identified individual] began on 5/30 and ran through 6/12. That permit was then extended on 6/13 and is good through 6/27. It should be noted that Verizon was also performing work at …Boylston St with the permit beginning on 5/27… [2] …There were no changes to the original CMP submitted. On July 1, 2025, the City responded, “[d]ue 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.” In its July 2, 2025 response, the City stated, “[y]esterday, we experienced an administrative systems error that resulted in an extension being inadvertently filed on your request. We apologize for any inconvenience this may have caused. We have worked with the Public Works department to confirm that no further responsive records exist for this request.” Current Appeal In his appeal petition, Mr. Kmack stated, “…the City of Boston is aware that work was being done at that site prior to May 30, yet the City of Boston is denying records or knowledge

Grace Jung SPR25/1935 Page 3 July 11, 2025 of significant work being done at that location as of May 17 and is also stating there are no records of inspections or safety measures put into place by the City, which is false.” In a telephone conversation between the City and this office on July 9, 2025, the City confirmed that it possesses no additional records responsive to Mr. Kmack’s 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). Further, 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). Conclusion Given that the City has confirmed that it possesses no additional records responsive to Mr. Kmack’s request, and this office has no authority to compel the City to create records, I will now consider this administrative appeal closed. If Mr. Kmack 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Scott Kmack