Brian McCarter v. Boston Public Health Commission (SPR 20253051)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2025 SPR25/3051 Javier Salas, Esq. Assistant General Counsel Boston Public Health Commission 1010 Massachusetts Avenue Boston, MA 02118 Dear Attorney Salas: I have received the petition of Brian McCarter appealing the response of the Boston Public Health Commission (Commission/BPHC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 23, 2025, Mr. McCarter requested, “…copies of what [the Commission’s] staff call ‘union notice’ in the last 12 months, as well as any policy documents that summarize when to notify unions.” Previous Appeal This request was the subject of a previous appeal. See SPR25/2032 Determination of the Supervisor of Records (July 23, 2025). In my July 23rd determination, I closed SPR25/2032 in light of the Commission providing a response on July 23, 2025. Unsatisfied with the Commission’s response, Mr. McCarter petitioned this office and this appeal, SPR25/3051, 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 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

Javier Salas, Esq. SPR25/3051 Page 2 October 27, 2025 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 Commission’s July 23rd Response In its July 23, 2025 response, the Commission provided “six CBAs… in a good faith attempt to address Mr. McCarter’s request.” In addition, the Commission stated: …BPHC maintains that it does not have in its possession any records titled “union notice.” … Mr. McCarter’s request does not reasonably describe records sought under the Massachusetts Public Records Law. Furthermore, based on Mr. McCarter’s communications with the BPHC, he no longer desired for BPHC to conduct a broad search for responsive records, but rather wanted policy documents outlining BPHC’s obligations to provide notice to its unions… Now, [Mr. McCarter] asks the BPHC to conduct a broad search of its records in conflict with what he had communicated to the BPHC… His request… does not include information sufficient to conduct a reasonable search for responsive records… [Mr. McCarter] has not provided any information that would allow BPHC to conduct a thorough search. For example, he has failed to ask what specific union, unit, incident, workforce, or subject matter pertaining to which he is requesting records. As noted above, BPHC communicates with union representatives on a daily basis on various matters. Without a more specific request, BPHC is unable to provide a response. Mr. McCarter himself admitted… that he is not sure what he is looking for and wanted broad-level information to be able to make follow-up requests... The law does not require agencies to stop what they are doing and search for broad level records in response to a public records request so that the requestor can eventually make appropriate requests. Current Appeal In his appeal petition, Mr. McCarter argued the following: [1] My request provided a reasonable description of records… [2] BPHC’s refusal to search is obstructionist… [3] Clarification narrowed, not abandoned, the request… [4] Public Records Law does not require granular knowledge of agency operations…

Javier Salas, Esq. SPR25/3051 Page 3 October 27, 2025 [5] Burden rests on the Records Access Officer, not the public… Please be advised that in Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. In addition, please be aware that the request must reasonably describe the specific records sought. See G. L. c. 66, § 10(a)(i). In a recent case, 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. l 784CV02087, at 2 (January 23, 2019). This office encourages Mr. McCarter and the Commission to communicate to facilitate providing records more efficiently and affordably. Mr. McCarter may wish to clarify his request. See G. L. c. 66, § 10(b)(vii) (an agency or 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 agency or municipality to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. McCarter and the Commission communicate further as described above, Mr. McCarter may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1).

Javier Salas, Esq. SPR25/3051 Page 4 October 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter