S. Howey v. Boston, City of - Fire Department (SPR 20180742)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records June 6,2018 SPR181742 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 6 15 Boston, MA 02201 Dear Attorney Williams: I have received the petition of S. Howey appealing the response of the City of Boston (City) Fire Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, S. Howey requested a copy of: Computer-aided dispatch transcripts (CADS); police reports; incident reports; calls for service reports; all audio files and documents for 91 1 calls; all digital files; all video; and all log book entries pertaining to an identified street address in the City from May 1,2018 to the present. In a May 21,2018 response, Lori Donovan, a Senior Administrative Assistant in the Fire Marshal's Office at the Department stated, "[tlhe only information that is public records is a copy of the incident reports as for the CAD and 9 1 1 recordings that is not public records and you would have to subpoena that information." Ms. Donovan also asked S. Howey to clarify whether copies of all incident reports on file with the Department for the identified address are being requested, or only reports for fires at the identified address. As a result of the Department's May 21Str esponse, S. Howey petitioned the Supervisor of Records (Supewisor) and this appeal was opened. In particular, S. Howey seeks records pertaining to any 91 1 calls. Use of custodian's superior knowledge In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in their custody to assist the requestor in obtaining the desired information. The duty to comply with requests for records extends to those records that exist and - 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 A. Williams, Esq. Page 2 June 6,201 8 are in the possession, custody, or control of the custodian of records at the time of the request. G. L. c. 66, 5 lO(a)(ii). 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, 5 lOA(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, 5 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, 5 1O (b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based.. . "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfollc Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). Burden of specificity in responding; duty to segregate The Department denied S. Howey's request without claiming any exemption(s) in the Public Records Law that would support the withholding of the responsive records. In addition, under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Department merely states its belief that some records are public, and some are not. Therefore, the Department did not meet its burden of demonstrating how any of responsive records, in their entirety, are exempt from disclosure. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, 5 lO(a). Moreover, the Department did not identify the records, categories of records or portions of records in its possession that are responsive to S. Howey's request. See G. L. c. 66, 5 lO(b)(iv); 950 C.M.R. 32.06(3)(~)(4)( records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Therefore, the Department must identify what records it has in its possession, care and control that are responsive to S. Howey's request. On May 23,2018 , you contacted a Public Records Division attorney regarding this appeal, and indicated the Department would follow-up on this request.

Shawn A. Williams, Esq. Page 3 June 6,2018 Conclusion Given that the Department did not provide the statutorily required specificity to withhold records, the Department cannot withhold the requested records in their entirety. See G. L. c. 66, 5 lO(b)(iv). Accordingly, the Department is ordered to provide S. Howey with a response in a manner consistent with this order, the 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 pre62sec.state.ma.u~. Sincerely, Rebecca S. Murray V Supervisor of Records cc: Lori Donovan S. Howey