Scott Kmack v. Boston, City of - Public Records (SPR 20253640)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2025 SPR25/3640 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 (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 16, 2025, Mr. Kmack requested, “... all records related to sidewalk excavation and construction at 1249 Boylston Street from April 1 - August 26, 2025. This includes any inspections, safety measures, revised plans, and correspondence with the contractors completing the work. I have received the April 8 CMP and the permit approved on May 28 for work beginning May 30 (EXCA-1722052) by James W. Flett, Co.” The City responded on December 8, 2025, and assigned the request reference number R004423-082725. Unsatisfied with the City’s response, Mr. Kmack petitioned this office, and this appeal, SPR25/3640, 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 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 SPR25/3640 Page 2 December 22, 2025 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. Current Appeal In his appeal petition, Mr. Kmack states, “I am requesting responsive inspection records. I have not received any inspection records from the City of Boston. Per my previous request, there is clear evidence of inspections at this site in City of Boston records ...” The City’s December 8th Response In its December 8, 2025 response, the City stated, “[t]he records responsive to this request have been released to the Public Records Center. Click the link below to log in to the Records Center.” Based on Mr. Kmack’s claims, in conjunction with the City’s responses, it is unclear if the City possesses any additional records responsive to the request. Specifically, the City must clarify whether it possesses inspection reports. 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). However, 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). Consequently, the City must clarify whether additional records exist. Conclusion Accordingly, the City is ordered to provide Mr. Kmack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Kmack may 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: Scott Kmack