The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth

Public Records Division Shawn A. Williams Supervisor of Records

Ms. Caroline Driscoll, Esq. City of Boston Law Department City Hall, Room 615 Boston, MA 0221 0

Dear Attorney Driscoll:

August 3, 2015 SPR15/181

I have received the April 9, 2015 petition by Jonathan Cohn, Joel Fleming, and Dan Currie appealing the response of the City of Boston (City) to requests for public records. G. L. c. 66 1 O(b ); see also 950 C.M.R. 32.08(2). In the petition, the requesters explain, "[i]n December 2014, the Boston 2024 Partnership, Inc," and the City "submitted a bid to the United States Olympic Committee, ... seeking to represent the United States in submitting a bid to the International Olympic Committee ... to host the 2024 Olympics." Specifically, Mr. Cohn, Mr. Fleming, and Mr. Currie requested records related to the 2024 Olympics.

Combined Appeal

This appeal was opened as a result of Mr. Fleming's petition dated March 10, 2015 indicating he was unsatisfied with the City's response dated February 17, 2015. See Determination of the Supervisor of Records (March 16, 2015). Subsequent to opening the present appeal, Mr. Cohn, Mr. Fleming, and Mr. Currie submitted the joint petition appealing the City's responses to their respective requests for records.

Basis of Appeal

The requesters contend that the City has failed to meet its fundamental burdens under the Public Records Law by issuing identical responses to different requests by several requesters. Further, the requesters contend that, as a general practice, the City does not consider requests for records to include email records unless specifically stated by the requester. Finally, the requesters contend that, as a result of the above, the City's response to each of the requests is inadequate and incomplete. The requesters seek an order against the City to ensure a complete and thorough search of all responsive records is made in response to their requests. For these reasons I have combined each request, response and petition into this one administrative order.

OneAshburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832 Fax (617) 727-5914 www.sec.state.ma. us/ pre

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Mr. Cohn's March andApril2015 Requests for Records

In an April20, 2015.petition Mr. Cohn sought assistance from this office related to the lack of response by the City to two April 2 requests for records associated with the 2024 Olympics. In an April23, 2015 letter to this office former Chief of Government Services Maribeth Cusick explained that the City has responded to these requests. Attorney Cusick further explained that the requests were made through a commercial website meant to assist journalists and citizens in obtaining public records. A review of this site indicates the requests, both dated April2, 2015 have been deemed complete, as the City has provided responsive records.

Mr. Cohn made three requests to the City related to the 2024 Olympics. Based on a review of this website, it appears that for the first, dated March 17, 2015 a response was provided by June 17, 2015. For the two April2, 2015 requests, responses were provided on June 23, 2015 and June 18, 2015 respectively. See https:/ /www.muckrock.com/foi/list/?sort=date submitted &order=asc&user=3026 (accessed July 27, 2015). Whereas Mr. Cohn's petition was based upon the City's failure to provide a written response, I will now consider the administrative appeals related to nonresponse closed. Mr. Cohn has only appealed the City's response dated June 23, 2015 and it is being handled in SPR15/556.

Mr. Currie's January 2015 Requestfor Records

On January 9, 2015, Mr. Currie requested the City provide him with "a copy of all records pertaining to the proposed 2024 Summer Olympics." (Emphasis added). On February 3, 2015, the City provided Mr. Currie with three documents: (1) a "Joinder Agreement," which is a document between the City and the United States Olympic Committee; (2) a document regarding management and professional liability insurance; and (3) several presentation slide pages concerning management and professional liability insurance. The requesters characterize this response as "First Wave Documents." To date Mr. Currie has received no other records.

In a letter dated April23, 2015, on which Mr. Currie, Mr. Fleming, and Mr. Cohn were copied, Attorney Cusick states, "at the time of the request and subsequent response ... the 'First Wave Documents' were all the documents in the City's possession."

The City also explains, "[b]ecause a search of the email system is time-consuming and diverts significant staff time, the City only conducts such searches when specifically requested, and generally charges $0.88/email to account for the search, segregation and review time associated with such." This office has previously found such a fee per email to be reasonable, particularly as many emails consist of multiple pages. A records custodian is ordinarily permitted to charge a fee of $.50 per page for computer printouts, in addition to charges for search and segregation of records. G. L. c. 66, 1 O(a); 950 C.M.R. 32.06(2).

Ms. Caroline Driscoll, Esq. Page Three August 3, 2015

Mr. Fleming's January 2015 Request for Records

SPR15/181

On January 22, 2015, Mr. Fleming requested three categories of records related to the 2024 Olympics. In the first request, Mr. Fleming sought copies of records "concerning the effect on property tax or other revenues of Boston hosting the 2024 Olympics." In the second request, Mr. Fleming sought copies of records related to two sections ofthe Joinder Agreement: (1) records related to Section 2.02 of the Joinder Agreement associated with "City funding, facilities, operational support and other resources," and (2) all records associated with Section 2.05, the so-called "Gag Order" section of the Joinder Agreement.

On February 17, 2015, the City provided Mr. Fleming with copies ofthe "First Wave Documents." On March 5, 2015, the City provided additional emails to Mr. Fleming which the requesters characterize as "Second Wave Documents." In response to a March 5 reply by Mr. Fleming, on March 10 the City provided Mr. Fleming with a copy of an email from the Mayor of Boston addressing the Gag Order.

In her April 23 letter Attorney Cusick states, "at the time of the request and initial response, the so-called 'First Wave Documents' were all the documents in the City's possession." Attorney Cusick further explains that with respect to Mr. Fleming's first request, "there were and are no records concerning the effect on property taxes or other revenue." While this response appears to conclude all responsive records were provided to Mr. Fleming, given the City's position that it not search for emails unless specifically requested to do so, it is unclear whether the City conducted a complete search.

Failure of City to Search for All Responsive Records

Attorney Cusick contends the City must only search for email records when directed to do so by a requester. The law, however states otherwise. "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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 7(26).

The law applies to all records, "regardless of physical form or characteristics." In her April 23 letter Attorney Cusick states, "the City only conducts such searches [to include email] when specifically requested." I find the City erred in omitting email records from its response to the requests for public records by all three requesters. G. L. c. 4, 7(26) (defining public records broadly); 950 C.M.R. 32.05( 4) (requirement that a record custodian must use his superior knowledge of the records to assist a requester in obtaining the records).

Accordingly, the City is hereby ordered, within ten (10) days ofthis order, to provide separately to each requester a written response that includes reference to records requested, records provided, as well as reference to any remaining records that exist that have not been provided, "regardless of physical form." If the City maintains that any portion of the responsive

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records are exempt from disclosure it must, within ten (1 0) days provide to each a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

If there are any fees associated with each individual response a written, good faith estimate must be provided. G. L. c. 66, 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, the City must provide the responsive records.

cc: Mr. Jonathan Cohn Mr. Dan Currie Mr. Joel Fleming