Maggie Mulvihill v. Boston, City of - Police Department (SPR 20190491)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 18, 2019 SPR19/491 Martha J DeMaio Director- Public Information City of Boston- Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition from Maggie Mulvihill appealing the nonresponse from the City of Boston Police Department (Department) regarding a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Ms. Mulvihill sent a request to the Department concerning squad shift information. In an email on March 4, 2019, Ms. Mulvihill filed an appeal with this office stating the Department has not produced responsive records. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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) (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 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Ms. Martha J DeMaio SPR19/491 Pg. 2 March 18, 2019 It is unclear if the Department possesses the records requested by Ms. Mulvihill. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). If the records are within the Department's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § lO(b)(iv) (custodian has the burden of establishing the applicability of an exemption). Based on a communication to this office from the City of Boston's Records Access Office, Attorney Shawn Williams, it is my understanding the Department is ''reviewing the records responsive to this request with BPD and [the Department] do intend to provide a response. Further, [the Department] have been in contact with the requester regarding this request." Accordingly, the Department is ordered to review the requests made by Ms. Mulvihill and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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: Maggie Mulvihill

Stewart, Gregory (SE,C) From: Shawn Williams <shawn.williams@boston.gov> Sent: Tuesday, March 05, 2019 4:39 PM To: Stewart, Gregory (SEC) Cc: Boyle, John; Laura Oggeri Subject: Re: PR19-0491 Appeal Acknowledgement Follow Up Flag: Follow up Flag Status: Completed Good Afternoon Gregory: Thank you for your email. I am reviewing the records responsive to this request with BPD and we do intend to provide a response. Further, I have been in contact with the requester regarding this request. Please let me know if you have any further questions. Yours truly, Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston I City Hall Plaza, Room 615 Boston, MA 0220 I www.boston.gov/departments/public-records p ub li crecords@boston. gov (617) 635-4037 On Tue, Mar 5, 2019 at 4:33 PM Stewart, Gregory (SEC) <gregory.stewart@state.ma.us> wrote: Dear Records Custodian, Please be aware, this office has received an appeal relating to your entity's response to a request for public records. Attached are further details concerning the appeal. If you have any questions or wish to provide further information relating to this matter, please contact the Public Records Division at pre@sec.state.ma.us or 617-727-2832. Given that the Supervisor of Records must issue a determination within 10 business days of receipt of the appeal petition, please provide any additional information to this office as soon as possible. 1 Gregory B. Stewart 1

Public Records Division Office of the Secretary of the Commonwealth One Ashburton Place, Room 1719 Boston, MA 02108 (617) 727-2832 (office) (617) 727-5914 (fax) 2