Scott Kmack v. Boston, City of - Public Records (SPR 20252990)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2025 SPR25/2990 Grace Jung Director of Public Records City of Boston 1 City Hall Square Boston, MA 02201 Dear Ms. Jung: I have received the petition of Scott Kmack 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 August 27, 2025, Mr. Kmack requested “…all records related to sidewalk excavation and construction at [an identified street address] from April 1 - August 26, 2025. This includes any inspections, safety measures, revised plans, and correspondence with the contractors completing the work.” The City responded on August 27, September 4, and September 11, 2025. Unsatisfied with the City’s responses, Mr. Kmack petitioned this office, and this appeal, SPR25/2990, 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. 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. 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 SPR25/2990 Page 2 October 23, 2025 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 August 27th and September 4th Responses In its August 27, 2025 response, the City acknowledged receipt of Mr. Kmack’s request and assigned the request reference number R004423-082725. In its September 4, 2025 response, the City assessed a fee of $2,505.00 to produce 6,132 responsive communications. The City produced all other records responsive to the request, and stated, “[o]ther than the correspondence/communications portion addressed above, in which a fee estimate was issued, the City (including the Public Works and Inspectional Services Department) have provided all records responsive to this request.” Current Appeal In his October 10, 2025 petition to this office, Mr. Kmack contended that the City had not provided any inspection reports related to his request. Mr. Kmack did not object to the City’s assessed fee. In an October 15, 2025 email communication to this office, the City stated, “[t]he Inspectional Services and Public Works departments have confirmed that all responsive records have been sent to Mr. Kmack. Additionally, part of Mr. Kmack’s request is for correspondence with contractors. After completing a preliminary search of City databases for this correspondence, we sent Mr. Kmack a fee estimate as this search yielded a large volume of potentially responsive records on September 11, 2025. No records are currently being withheld. If Mr. Kmack wishes to obtain these records, he must pay the fee we sent or modify his request to lower the volume of potentially responsive records.” 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 not subject to a fee 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. 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

Grace Jung SPR25/2990 Page 3 October 23, 2025 Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Scott Kmack