John M. Thompson, Esq. v. Boston, City of - Police Department (SPR 20190104)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2019 SPR19/0104 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of John Thompson, Esq. appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on November 29, 2017, Attorney Thompson requested three categories ofrecords. This appeal pertains to requests 1 and 3. Attorney Thompson requested the following: "l. All documents reflecting or pertaining to Deputy Superintendent Robert Faherty's: a. receipt of the May 29, 1991 memorandum from Officer Rudy Guity regarding an identified person's repeated report that Troy Logan had bragged about killing [an identified individual]; b. Deputy Supt. Faherty's response to Officer Guity's memorandum; c. all investigation done by any Boston Police personnel and/or by any federal law enforcement authorities of the matter reported in Officer Guity's memorandum; and d. all records of the distribution of the fruits of any such investigation within the Boston Police Department and to any organization, agency or individual outside the Boston Police Department. 3. Documentation a. that, on May 29, 1991, Officer Rudy Guity ... was an active member of the Boston Police Department. b. of his duty assignment between May 24 and May 31, 1991 ; and c. of Officer Guity's current status vis-a-vis the Boston Police Department." The City provided responses on February 26, 2018, March 2, 2018, and April 5, 2018. The City provided a copy of Officer Guity's memorandum to Deputy Supt. Faherty. 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. SPR19/104 Page 2 February 1, 2019 The City's February 26th and March 2nd responses In its February 26, 2018 response, the City states "[p]lease be advised that the Homicide Unit reports that it does not have any records responsive to items 1 and 3 .... Additionally, there may be records of the Youth Violence Strike Force, or gang unit, that are responsive to [Attorney Thompson's] request, but have been archived. Once the gang unit has reviewed the list of archived files to determine which, if any, are responsive to [Attorney Thompson's] request, [the City] will be in touch." In its March 2, 2018 response, the City claims that after conferring with the records manager and archivist at the Boston Police Department Records Center and Archives ... [the City] has identified series of records which correlate to the relevant time period and [is] currently working with Department members to identify which, if any, are responsive to your request. ... " The City's April 5th response In its April 25, 2018 response, the City states that Attorney Thompson's " ... correspondence consists of questions, and are not requests for records ... [because it] seeks information 'reflecting or pertaining to' to certain matters." The City contends that Attorney Thompson's correspondence would require it" ... to review every record from the period and make a determination as to whether each record is responsive to [A ttorney Thompson's] questions. A records custodian is not required to conduct research or answer questions in response to a request for public records .... Such a review is not required under the public records law. ..." Following the City's April 5th response, Attorney Thompson revised his previous request and requested the following records on April 25, 2018. "l. Documentation: a. That Deputy Superintendent Faherty received Officer Guity's May 29, 1991 'Good Citizen' report ... ; b. Of all directives Faherty issued and other steps he took to have the information in the Good Citizen report investigated; c. Of all investigation conducted by or for BPD or other Boston law enforcement agents, Massachusetts State Police, or federal law enforcement authorities into the Good Citizen report; d. Of all information produced by the investigations referred to in part 1[ c ]; and e. Of the distribution of that information 2. Documentation: a. Of all contact by BPD personnel with Norris F. Thomas between June 18, 1991 and March 31, 1992; b. Of all information obtained by the BPD personnel from or about Norris F. Thomas between June 18, 1991 and March 31, 1992;

Shawn A. Williams, Esq. SPR19/104 Page 3 February 1, 2019 c. All BPD contacts, or efforts to locate or contact, Troy Logan between May 23, 1991 and March 31, 1992; and d. Of all information obtained by BPD personnel from or about Troy Logan between May 23, 1991 and March 31, 1992." The City provided a response on May 21, 2018, indicating that "[a ]fter review it has been determined that the [City] has no records responsive to [Attorney Thompson's] request." Following the City's May 21st response, on August 20, 2018, Attorney Thompson requested "copies of all documents recording any step of the efforts made by the Boston Police Department and/or by [the City] office to discover the documents I requested in my November 27, 2017 and/or April 25, 2018 public records request" and "copies of all documents recording communications between a representative of the Boston Police Department or of [the City's] office and any person or agency outside the Boston Records Access office or the Boston Police Department about the documents I required in my November 17, 2017 and/or my April 25, 2018 public document requests." Previous appeal; reconsideration The August 20th request was the subject of a previous appeal and subsequent reconsideration. See SPR18/l 738 Determinations of the Supervisor of Records (November 30, 2018 and December 13, 2018~. In my December 13th determination, I declined to reverse my findings in my November 30t determination which found that it was unclear how the City had complied with requirements involved in providing a response to a request for public records. I also found that the City had not met its burden to withhold records under the common law attorney-client privilege. As a result, the City was ordered to provide Attorney Thompson with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the December 13th determination, the City provided a response on December 27, 2018, indicating that there are no records responsive to Attorney Thompson's request. Unsatisfied with the City's response, Attorney Thompson petitioned this office and this appeal, SPR19/0104, 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, § 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, § 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.

Shawn A. Williams, Esq .. SPR19/104 Page 4 February 1, 2019 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(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's December 21" response In its December 27, 2018 response, the City reiterates its position that" ... there are no records responsive to [Attorney Thompson's] requests; [Attorney Thompson's] letters consist of requests to conduct research and not requests for copies of public records." The City advises Attorney Thompson to contact the court in which his client's case was tried in case he seeks copies of his client's case file. With respect to Attorney Thompson's November 29th request, the City reiterates its April 5th response that Attorney Thompson's request" ... consists of questions, and ... not requests for records .... [I]f you wish to request specific records you are encouraged to do so. To reiterate my April 5 response, [the City] once again state[s] that there are no records responsive to your November 29 letter." With respect to the April 25th request, the City states that Attorney Thompson's" ... April 25 letter ... requests 'Documentation.' In [the City's] May 21 letter [it] explained that there are no records responsive to your April 25 request for 'Documentation."' The City reiterates" ... that there are no records responsive to [Attorney Thompson's] April 25 letter." With respect to Attorney Thompson's August 20th request, the City states "[t]here are no records responsive to your November, April or August letters. As there are no records responsive to your November or April correspondence it is not possible to respond to your August 20 correspondence. As such there is no "constructive denial" as [A ttorney Thompson] assert[ s] in [his] November 15 petition to the Supervisor of Records as there are no records." The City further indicates that " ... should [A ttorney Thompson] seek specific records [he is] encouraged to request them. Ifrecords exist a response will be provided. ..." Compliance with the requirements ofp roviding a response Although the City provided responses to Attorney Thompson's requests, I find the City has not met its statutory and regulatory obligation under the Public Records Law in providing a response to a public records request.

Shawn A. Williams, Esq. SPR19/104 Page 5 February 1, 2019 November 29th and April 25th requests With respect to the above referenced requests, the City's initial response on March 2nd stated that "[it] has identified series ofrecords which correlate to the relevant time period and [is] currently working with Department members to identify which, if any, are responsive to your request. ..." In the City's April 5th response, the City further indicates that Attorney Thompson's " ... correspondence consists of questions, and are not requests for records ... [because it] seek[s] information 'reflecting or pertaining to' certain matters" and would require the City" ... to review every record from the period and make a determination as to whether each record is responsive to [Attorney Thompson's] questions." Later in the City's December 2ih response, the City claims there are no records responsive to Attorney Thompson's requests. Based on the City responses, it is unclear whether responsive records existed at the time of Attorney Thompson's requests. Accordingly, I find the City must explain whether records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a )(ii), (b )(ii). If such records were destroyed, the City must demonstrate whether it followed proper records retention protocol. Please note, that records must be retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. August 20th request With respect to the above referenced request, the City had previously claimed in its October 5th response that based on its initial review, records between it and the legal staff at the Boston Police Department would be exempt from disclosure as attorney-client privilege communications. See SPR18/l 738 (November 30, 2018) (November 30th determination). Based on this claim, I ordered the City to provide Attorney Thompson with a response indicating how the privilege applies to the records. In light of the City's December 2ih response, indicating that "[t]here are no records responsive to [Attorney Thompson's] November, April or August letters. As there are no records responsive to your November or April correspondence it is not possible to respond to your August 20 correspondence," it is unclear if the City possesses records responsive to Attorney Thompson's August 20th request. Consequently, the City must clarify whether records existed at the time of Attorney Thompson's request or whether the records did not initially exist. See G. L. c. 66, § IO(a)(ii), (b)(ii). If responsive records no longer exist, the City must explain in writing its justification under the Public Records Law and the Municipal Records Retention Schedule for destroying the records. See G. L. c. 66, § 10(a )(i). If the City maintains that the attorney-client privilege applies to withhold responsive records from disclosure, the City must provide further information regarding how the privilege applies to the records. See November 30th determination. I understand a Public Records Division staff attorney contacted your office about this appeal.

Shawn A. Williams, Esq. SPR19/104 Page 6 February 1, 2019 Conclusion Accordingly, the City is ordered to provide Attorney Thompson with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Thompson, Esq.