Joshua Eaton v. Boston, City of - Police Department (SPR 20160712)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR161712 Lt. Detective Michael McCarthy, Esq. Director, Media Relations Boston Police Department 1 Schroeder Plaza Boston, MA 02120 Dear Lt. Detective McCarthy: I have received the petition of Joshua Eaton appealing the response of the 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, Mr. Eaton requested all emails between employees or contractors of the Department and employees or contractors of the National Security Agency between a specific time period and containing specifically identified words. This request included emails sent from personal email accounts. In an email to Mr. Eaton dated September 1, 2016 you stated that your office "has conducted thorough searches for records responsive" to his request. You further stated that the "Department has no records responsive to this request." Mr. Eaton appealed, citing responses by the Department to other requests suggesting such records exist. In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). In your September 1 response you address Mr. Eaton's assertion that Department records exist, as such records were provided to other requesters. You deny any inconsistency alleged by Mr. Eaton by stating that "[a]t no time does [your] language contradict past emails." To assist, you suggest that Mr. Eaton "red them through again thoroughly." In your September 1 email you also state that you "have been extremely clear in [your] responses" to Mr. Eaton's request. You further stated emphatically that the Department "has NO responsive records to this request." (EMPHASIS ADDED). The duty of a records custodian 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); see also 950 C.M.R. 32.03. Whereas the Department has conducted a review of its records, and further whereas the Department has subsequently determined it has no records responsive to Mr. Eaton's request, I OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lt. Detective Michael McCarthy, Esq. SPR16/712 Page2 September 16, 2016 will consider this administrative appeal closed. If Mr. Eaton is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court ofthe Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). ours, I n · :_wrt'liams ervisor of Records cc: Mr. Joshua Eaton