Mary Schwager v. Boston, City of - Police Department (SPR 20160162)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/162 Ms. Myeshia Henderson City of Boston Police Department Office of Media Relations One Schroeder Plaza Boston, MA 02120-2014 Dear Ms. Henderson: I have received the petition of Mary Schwager of WHDH appealing the response of City of Boston Police Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Schwager requested an audio copy of a 911 call. In a response dated January 27, 2016 the Department offered to provide a transcript of the audio recording but denied providing an audio copy of the responsive record. In this response you state that, "it is our policy not to release audio copies of 911 calls. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Ms. Schwager requested audio copies of audio recordings. Claiming no exemption to the Public Records Law the Department denied this portion of her request. The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Where the native form of the records requested is audio form the Department must respond to a request that the records be provided in that form. The Department has claimed no exemption to assist it in denying records in their native audio form. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Myeshia Henderson SPR16/162 Page2 March 11, 2016 Other states have recognized the fact that electronic records must be disclosed in native form in response to a request for public records. See Lake v. City of Phoenix, 107 Fair Empl. Prac. Cas. (BNA) 1142 (2009) (if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure). Accordingly, I find that the Department must provide records in native form when so requested unless an exemption permits or requires non-disclosure. The Department is hereby ordered, within ten (10) days of this order, to provide Ms. Schwager with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Ms. Schwager 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 this 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, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit are ords custodian in person to conduct training workshops on the Public Records Law upon quest. Please contact my office directly at the telephone number provided in this detci€1iti atio for further information. yours, cc: Ms. Mary Schwager