Richard DiNatale v. Boston, City of - Police Department (SPR 20160847)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/847 Ms. Nicole I. Taub, Esq. Office of the Legal Advisor City of Boston Police Department One Schroeder Plaza Boston, MA 02120-2014 Dear Attorney Taub: I have received the petition of Richard DiNatale appealing the response of the 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). Mr. DiNatale requested copies of records related to a traffic accident case #162047584, specifically copies of: 1. Photographs taken at the scene. 2. Any video taken at the scene of the accident. 3. 911 calls from approximately 5:55AM to 6:10Am on June 16,2016 regarding the accident. 4. The 911log/CAD report. Right ofA ccess Please note that the personal status of Mr. DiNatale's client in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances ofthe requester. See Bougas v. ChiefofPolice ofLexington, 371 Mass. 59, 64 (1976). The Public Records Law 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Nicole I. Taub, Esq. SPR16/847 Page 2 October 18, 2016 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). 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. Request# 1 With respect to request number 1 the Department explained that no photographs were taken and the scene. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). Accordingly, this portion ofthe appeal is closed. Request# 2 With respect to request number 2 the Department explained that it only preserves video footage for thirty (30) days before the video footage is recorded over. Explaining that even if the Department had footage that was responsive to this request it would have been recorded over prior to the request Mr. DiNatale's request. It is unclear from the Department's response whether it actually searched its records to determine whether the responsive video exists or ever existed. Accordingly the Department is hereby ordered to do a full and thorough search of its records, identify and provide any and all records responsive to request number 2. If the Department maintains that the responsive records no longer exist, the Department is further ordered to explain in writing its justification under the Public Records Law and the Municipal Records Retention Manual. Request# 3 With respect to request number 3 the Department explained that it is Department policy not to provide copies of 911 emergency calls in non-criminal matters. The Department did not claim any exemption to the Public Records Law as a means for withholding the 911 calls. It is the obligation 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). To meet the specificity requirement a custodian must not only cite an

Ms. Nicole I. Taub, Esq. SPR16/847 Page 3 October 18, 2016 exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. I find the Department has failed to respond to a request number 3. Request# 4 With respect to request number 4 the Department provided the 911/Cad report with certain information redacted. The Department broadly cited to Exemptions (c), the privacy exemption and Exemption (f) the investigatory exemption as a means for withholding the redacted information. G. L. c. 4 §(26)(c),(f). The Department provided no further information to support its exemption claims. 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. I find the Department has failed to respond to a request number 4. Order For the reasons discust>ed above, the Department is hereby ordered to provide Mr. DiNatale with a revised written response to his request for records. This response, prepared in compliance with this order, the Public Records Law and its Regulations, must include a statement about what was provided and what is left to be provided. 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. Richard DiNatale