Sean M. Thomas v. Boston, City of - Public Records (SPR 20171152)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 7, 2017 SPR17/1152 Shawn Williams, Esq. Director - Records Access Officer Boston Public Records Department 1 City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Sean Thomas appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Thomas requested copies of documentation involving an identified proceeding. Previous appeal This request was the subject of a previous appeal. See SPR17/ 884 Determination of the Supervisor of Records (July 11, 2017). I closed SPR17/884 with the proviso that the Department provide a supplemental response. The Department responded in a letter dated July 17, 2017. Mr. Thomas appealed and SPR17 /1152 was opened as a result. 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, § 10A(d); 950 C.M.R. 32.03(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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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. 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

Shawn Williams, Esq. SPR17/1152 Page 2 September 7, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity ofr equester Please note that the reason for which a requestor seeks access to or a copy of a public record 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 requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Thomas's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Co~rt has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Thomas may wish to consider another means of seeking to obtain any existing responsive records. No duty to create records Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 6A( d); 32 Op. A tty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time ofthe request. See G. L. c. 66, § 10(a)(ii). Current appeal In his appeal petition received by this office on August 23, 2017, Mr. Thomas indicates he is not seeking documentation pertaining to an identified case, nor does he "seek to obtain information or records of any victim of an assault of a sexual nature or crime. Nor the identity of a victim of a sexual assault or rape. Including no documentation or information from the Crime Lab, Evidence-Management Unit, Sexual Assault Unit, nor the Latent Print Identification Unit." Instead, Mr. Thomas explains "I am entitled to the information of the following in possession of the Boston P.D.: 1) whether Boston Police Officer Latent Print Examiner William

Shawn Williams, Esq .. SPR17/1152 Page 3 September 7, 2017 F. Hussey, Boston Police Detectives James E. Powers and John Carroll falsified the discovery of prints impressions upon the alleged glass jar." However, based on this petition, it is unclear what type of records Mr. Thomas is seeking. See G.L. c. 66, § IO(a)(i) (the request must reasonably describe the public record sought). In light of the ambiguity regarding the records sought, Mr. Thomas has not specifically described the nature of his appeal. See 950 C.M.R. 32.08(l)(f) ("all petitions for appeal shall be in writing and shall specifically describe the nature of the requester's objections to the response or failure to timely respond"). Therefore, I decline to issue a determination at this time. Mr. Thomas may re-submit his appeal with additional information, if appropriate. Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Thomas