David Brown v. Boston, City of - Police Department (SPR 20170001)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 4, 2017 SPR17/001 Lieutenant Michael McCarthy Director of Media Relations , City of Boston-Police Department One Schroeder Plaza Boston, MA 02120 Dear Lieutenant McCarthy: I have received the petition of David Brown appealing the response of City of Boston Police Department (Department) to a request for publi.c records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Brown requested a copy of: 1. Any lists, databases and inventory rosters containing weapons used by the Department officers, including firearms, tasers and batons), 2. (If no records responsive to Request No. 1) All records pertaining to the weapons that may be carried by officers as determined by the chief of police, the board or officer having control of the police under the authority granted in G. L. c. 41, § 98, and 3. All records pertaining to the most recent audit of firearms owned by the Department. No Records In aNo vember 9, 20 16 response, the Department informed Mr. Brovm that it has no records responsive to Request No. 1. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). Timeliness of response While the Department provided Mr. Brown with an acknowledgment on the day that the request was received, a proper response which included a denial of records was not provided to the requester until two (2) months after the September 2016 request. Under the Public Records One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lt. Michael McCarthy SPR17/001 Page 2 January 4, 2017 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. The Department is reminded that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 fees are paid, a records custodian 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 a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. In its November 9 response, the Department informed Mr. Brown that the records responsive to his requests for records pertaining to the particular weapons carried by officers and records pertaining to any recent audits concerning firearms mvned by the Department are being withheld pursuant to Exemptions (f) and (n) of the Public Records Law. A review of the response reveals that the Department has not met its statutory and regulatory obligation of support the exemption claims to withhold records. An attorney on my staff conversed with you on January 4 regarding this appeal and provided the Department with a copy of the appeal file via email. You indicated that the

Lt. Michael McCarthy SPR17/001 Page 3 January 4, 2017 Department would provide a supplemental response concerning the requests and exemption claims. I find the Department has failed to properly respond to a request for public records. Accordingly, whereas the Department has promised to provide Mr. Brown with another response to the request, I will consider this appeal closed with the proviso that the Department provide the response within ten (1 0) days, and 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. Sincerely, Re~~ Supervisor of Records cc: David Brown