Eoin Higgins v. Boston, City of - Police Department (SPR 20171549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2017 SPR17/1549 Lt. Detective Michael P. McCarthy Director of Media Relations City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Lieutenant Detective McCarthy: I have received the petition of Eoin Higgins of The Berkshire Eagle appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Mr. Higgins requested a copy of all communications to and from the Department between August 5th and August 21st related to the groups involved in the free speech rally held at the Boston Common on August 19th, including: 1. Any communications between the Department and the federal Department of Homeland Security; 2. Any communications about the group known as Antifa, and; 3. Any communications about the potential of violence from the so-called "alt-right." On October 23rd, the Department provided Mr. Higgins with some redacted records accompanied by a response that neither claimed nor specifically explained the redactions in the records. Mr. Higgins appealed. In his October 26th petition, Mr. Higgins states that he received eleven documents that were completely redacted and that he did not receive any of the requested email communications. Petitions to the Supervisor of Records Mr. Higgins is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor of Records (Supervisor) for an appeal, the requester shall provide to the Supervisor complete copies of all correspondence associated with the petition, including all written responses associated with requests subject to the petition for appeal. 950 C.M.R. 32.08(1)(g). Additionally, in petitioning the Supervisor, the requester shall provide a copy of such petition to the Records Access Officer (RAO). 950 C.M.R. 32.08(1)(h). 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. Detective Michael McCarthy SPRl 7/1549 Page2 November 9, 2017 A staff member of the Public Records Division provided the Department with a copy of the appeal file, including Mr. Higgins petition to the Supervisor. · 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, § IOA(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, § lO(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). It is unclear why the Department did not provide Mr. Higgins with a detailed response or index to explain what exemptions were claimed and how those exemptions apply to withhold content redacted from the records Mr. Higgins received. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § IO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's response that accompanied the redacted records did not contain the specificity required in withholding content from a public record, nor did the Department explain whether it has withheld any of the requested email communications. I find that the Department did not satisfy its burden in responding to Mr. Higgins request under the Public Records Law. See G. L. c. 66, § IO(b)(iv); see also 950 C.M.R. 32.06(3)(c). I also remind the Department that a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). It is my understanding that an attorney in the Public Records Division contacted you regarding the request and appeal of the Department's October 23rd response. The Department indicated that a supplemental response concerning the redactions and the email communications would be provided to Mr. Higgins. Conclusion Accordingly, whereas the Department will provide a supplemental response, I will consider this appeal closed with the proviso that the Department provide Mr. Higgins with the response to the request and redaction of the records, in a manner consistent with this order, the

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 9, 2017 SPR17/1549 Lt. Detective Michael P. McCarthy Director of Media Relations City of Boston Police Department One Schroeder Plaza . Boston, MA 02120 Dear Lieutenant Detective McCarthy: I have received the petition of Eoin Higgins of The Berkshire Eagle appealing the response of the City of Boston Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Mr. Higgins requested a copy of all communications to and from the Department between August 5th and August 21st related to the groups involved in the free speech rally held at the Boston Common on August 19t\ including: 1. Any communications between the Department and the federal Department of Homeland Security; 2. Any communications about the group known as Antifa, and; 3. Any communications about the potential of violence from the so-called "alt-right." On October 23rd, the Department provided Mr. Higgins with some redacted records accompanied by a response that neither claimed nor specifically explained the redactions in the records. Mr. Higgins appealed. In his October 26th petition, Mr. Higgins states that he received eleven documents that were completely redacted and that he did not receive any of the requested email communications. Petitions to the Supervisor of Records Mr. Higgins is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor of Records (Supervisor) for an appeal, the requester shall provide to the Supervisor complete copies of all correspondence associated ,vith the petition, including all written responses associated with requests subject to the petition for appeal. 950 C.M.R. 32.08(l)(g). Additionally> in petitioning the Supervisor, the requester shall provide a copy of such petition to the Records Access Officer (RAO). 950 C.M.R. 32.08(1)(h). 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. Detective Michael McCarthy SPRl 7/1549 Page2 November 9, 2017 A staff member of the Public Records Division provided the Department with a copy of the appeal file, including Mr. Higgins petition to the Supervisor. · 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, § 1O A( 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, rnade 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 v.11.thhold a requested record. G. L. c. 66, § lO(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). It is unclear why the Department did not provide Mr. Higgins with a detailed response or index to explain what exemptions were claimed and how those exemptions apply to withhold content redacted from the records Mr. Higgins received. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Department's response that accompanied the redacted records did not contain the specificity required in withholding content from a public record, nor did the Department explain whether it has withheld any of the requested email communications. I find that the Department did not satisfy its burden in responding to Mr. Higgins request under the Public Records Law. See G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c). I also remind the Department that a fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10( d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR32.06(4). It is my understanding that an attorney in the Public Records Division contacted you regarding the request and appeal of the Department's October 23rd response. The Department indicated that a supplemental response concerning the redactions and the email communications would be provided to Mr. Higgins. Conclusion Accordingly, whereas the Department will provide a supplemental response, I will consider this appeal closed with the proviso that the Department provide Mr. Higgins with the response to the request and redaction of the records, in a manner consistent with this order, the

Lt. Detective Michael McCarthy SPRI 7/1549 Page 3 November 9, 2017 Public Records Law and its Regulations within ten (10) business days. 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. Mr. Higgins may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins