Sean M. Thomas v. Boston, City of - Public Records (SPR 20171501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 27, 2017 SPR17/1501 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). Previous appeal This request was the subject of a previous appeal. See SPR17/1152 Determination of the Supervisor of Records (September 7, 2017). I declined to issue a ruling in SPR17/1152 due to a lack of clarity in Mr. Thomas's request for records. Accordingly, Mr. Thomas was informed to re-submit his appeal with additional information. 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). 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. 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!1501 Page 2 October 27, 2017 Purpose of request; identity of requester 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 also 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 Court 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(1)(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. Atty 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Current appeal In his petition received by this office on October 19, 2017, it appears Mr. Thomas is seeking various categories of records pertaining to a conviction to demonstrate "actual innocence and exoneration." He seeks investigative reports and/or records and its conclusive evidence. However, based on his petition, it is still unclear what type of records Mr. Thomas is seeking. See G.L. c. 66, § 10(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(1)(±) ("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 a listing of the records sought.

Shawn Williams, Esq. SPR17/1501 Page 3 October 27, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Sean Thomas