Does City Hall Have a Public Records Problem?

Boston City Hall Photo by Naquib Hossain on Flickr/Creative Commons

Without a handful of public records requests filed and granted recently, the citizens of Boston would know a lot less about the bid to bring the 2024 Summer Olympics to our city.

Boston 2024 is a private entity, and thus immune to the civic scrutiny enabled by public records laws. Instead, the media and civic groups have filed records requests with the public agencies the bid interacts with. Those have led to recent revelations about Boston 2024’s talking points; the list of suggested “themes” the bid provided to Mayor Marty Walsh before a public appearance; evidence of Boston Redevelopment Authority (BRA) project manager and city Olympic liaison John Fitzgerald’s interest in “selling [the] Olympics”; and the unredacted bid book presented to the United States Olympic Committee before it was sanitized for public consumption.

But apparently, not all public records requests are created equally. The emails and documents containing these revelations—many implicating Walsh and his administration—have come from requests filed to public agencies outside of the Mayor’s office. For example, on May 18, Jonathan Cohn of No Boston 2024 received a response to a public records request he submitted to the Boston Redevelopment Authority through MuckRock (a startup that helps citizens and journalists file public-records requests). “The BRA has opted to waive all fees associated with the search and segregation of these records,” BRA executive director Teresa Polhemus told Cohn in an email. Free of charge, the BRA provided Cohn with hundreds of emails—attachments included—between its staff and Boston 2024.

What has happened to requests filed directly with City Hall is a little more complicated.

A week before his BRA request, Cohn received a response from Maribeth Cusick, the City of Boston’s chief of government services. Cohn had also filed three requests to obtain email correspondence between city officials, Boston 2024, and its associates. According to an email exchange provided to Boston by Cohn, Cusick quoted him a price tag of nearly $5,000. Here’s how the city itemized Cohn’s requests:

• Any written or electronic communication sent or received by then City of Boston employee Joe Rull from January 1, 2015, through February 6, 2015, as well as any written or electronic communication between a City of Boston employee and Rull since becoming Boston 2024’s Chief Operating Officer. ($4,070)
• Any written or electronic communication between Chief of Staff Dan Koh and any employee of the Boston 2024 Partnership, any member of the Boston 2024 Organizing Committee, any employee of then Boston 2024 chairman John Fish’s Suffolk Construction, and any employee of public relations firm Northwind Strategies from May 1, 2014 to the present. ($386.32)
• Any written or electronic communication between an employee of the Mayor’s Office and an employee of Northwind Strategies (presumably Doug Rubin, communications advisor to Boston 2024), from November 5, 2014, to the present. ($388.96)

The high cost, Cohn says, is “a way of making it prohibitive so that people decide not to bother.” (Cusick could not be reached for comment.) Cohn later narrowed his request of Rull’s emails, bringing the grand total down to $1,084.77. The city charges 88 cents per email, assuming an attorney—at a rate of $40 an hour—spends a minute reviewing each one, plus 20 cents per email in printing costs, unless a CD-ROM is requested. In an email to Cohn, Cusick argued that the city was giving him a bargain:

I do most of the review and have a higher hourly rate.  In addition we do not charge the higher hourly rate of the tech staff who run the searches and import to my computer.  Nor do we charge the hourly rate of the Department Heads and Cabinet Chiefs for the review of the emails that will ultimately be released. In addition, by the time we search import and review, it is longer than a minute per email.  Lastly, regardless of whether the email is one page or twenty pages, we only charge $0.20/email. In essence, production of emails is time-consuming and costly from personnel-cost perspective, but we only shift a portion of those costs to the requestors.

Cohn says he received this response only after he, Boston attorney Joel Fleming (who successfully requested and obtained emails between UMass officials and Boston 2024), and Dan Currie filed a joint appeal with Supervisor of Public Records Shawn Williams. (State law requires that agencies answer a request within 10 days, and Cohn’s three requests had gone unanswered far past that deadline.) Cohn had filed his requests through MuckRock, which generates the legalese for each request, directs it to the specified public body’s custodian of public records, and automates follow-up emails.

Therein lies the problem, City Hall says.

“With respect to the request from Jonathan Cohn, the Mayor’s Office only became aware of the request through this appeal,” Cusick wrote in an April 25 letter to Williams, provided by Cohn. “[The] City has had an ongoing issue with requests from MuckRock and is attempting to work with MuckRock to ensure requests are being sent to appropriate email address. Apparently a large volume of MuckRock requests are being sent to a paralegal in the Law Department. He is doing the best he can to forward the request to the appropriate custodians throughout the City, but is having a hard time managing this in addition to his other job responsibilities. The City hopes to work with MuckRock to find a better solution moving forward.”

Walsh’s chief communications officer Laura Oggeri says that if MuckRock had provided contact information on its requests, the city would have reached out proactively to fulfill each request.

“The city holds fulfilling public records requests at the highest priority,” Oggeri told Boston in an email. “We had some difficulty with MuckRock where the requests were being sent to an unknown email address, a problem that was only recently solved by contacting MuckRock.”

Michael Morisy, a Knight Journalism Fellow and founder of MuckRock, isn’t buying it. According to Morisy, MuckRock was sending public-records requests to the paralegal for one reason and one reason only: A year ago, he says, the city told them to. A couple weeks ago, Morisy claims, the city contacted him to update the contact address for public records requests: “They want it rerouted to their public relations department,” he says. “That’s pretty unusual and concerning, on a number of levels. But we complied.”

Morisy says that once City Hall asked, Muck Rock changed the contact address immediately. “I’m a little perplexed as to why we’re causing so much trouble when we rerouted to the public relations department within 24 hours,” he says. “If their paralegal is overwhelmed by a dozen or so requests, I’m happy to come by and give him a free lesson on how to triage his inbox. But that’s embarrassing.”

There’s another problem with City Hall’s version of events. Back in February, in response to a request by Dan Currie for all City Hall records pertaining to Boston 2024 in its possession, paralegal George Bahnan handed over just three documents. In a subsequent letter to Williams, the public records supervisor, Cusick asserted that this was, indeed, all the documents pertaining to Boston 2024 in City Hall’s possession. But as evidenced by the emails and documents uncovered by Cohn’s BRA request, it’s extremely likely that more records were in City Hall’s possession.

The BRA emails show that Boston 2024 provided Walsh’s scheduler Pamela Carver and advance staffer Cameron Charbonnier with a preview of the bid’s “Movement Committee” launch event at Blazing Paddles in October 2014. The BRA emails also show that Boston 2024 provided Carver, Charbonnier, Koh, and assistant Michael Chambers with an agenda in November 2014. Cusick’s assertion also implies that City Hall was not in possession of the unredacted bid book presented to the USOC in December—despite then-spokeswoman Kate Norton telling the Globe in December that Walsh was “very well-versed in the items proposed by Boston 2024 and was a co-signer on the bid.”

Why then were these documents—which were contained in emails, in the cases of the event brief and agenda—not included in the city’s response?

In a letter to the Custodian of Public Records, Cusick seems to make an outrageous argument: That when someone asks for “all records” on a topic, City Hall isn’t obligated to search its emails. “Because 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,” Cusick told Williams. It’s hard to see this as anything less than administrative foot-dragging: The city first under-reported the number of documents it had, and then—when forced to admit it has more than it claimed—it charged an arm and a leg.

In February, Koh sent a memo to the city’s cabinet chiefs and department heads urging prompt responses to public records requests. Citizens must receive a response with 48 hours, or else a detailed explanation why, reviewed by Koh and the Mayor. “It is Mayor Walsh’s top priority to lead a transparent and open government,” Koh wrote. “It is our responsibility to work together to fulfill that goal.”

When MuckRock opened crowd-funding for Cohn’s three public records requests (which specifically ask for “written and electronic communications”), all three were fully funded in less than a week. Which means new insight into the interplay between Boston 2024 and city officials could soon come to light.