Evan Anderson v. Boston, City of - Police Department (SPR 20160628)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 2, 2016 SPR16/628 Lieutenant Detective Michael McCarthy Director, Media Relations Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Mr. McCarthy: I have received the petition of Evan Anderson appealing the response of the City of Boston-Police Department (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Anderson requested copies of "email communications between the Boston Police Department and the National Security Agency from September 1, 2011, to December 30, 2011; April12, 2013, to April25, 2013; and March 1, 2014 to April25, 2014." The Department provided records responsive to the first time period, withholding other records, and determined that other "potential responsive" records were not responsive. Mr. Anderson then amended his request to include "emails containing 'NSA' or 'National Security Agency' in the body or subject field," for the same periods in his first request. It appears to date the Department has not provided a written response to this broader request. Mr. Anderson also requested that any reimbursable fees paid associated with the earlier request be applied to fees associated with the latter. Mr. Anderson also requests the Department provide specificity with respect to any records withheld or redacted. Having received no response Mr. Anderson appealed. The Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lieutenant Detective Michael McCarthy SPR16/628 Page2 September 2, 2016 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 or redacted portion of the responsive record. Order I find the Department has failed to respond to a request for public records. Accordingly, the Department is hereby ordered to review Mr. Anderson's requests and provide a written response, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Mr. Evan Anderson Ms. Nicole Taub, Esq.- Office of the Legal Advisor