Colman Herman v. Boston Police Department (SPR 20191115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 18, 2019 SPR19/1115 Sgt. Det. John Boyle Office of Media Relations City of Boston- Police Department One Schroeder Plaza Boston, MA 02120 Dear Sgt. Det. Boyle: I have received the petition of Colman Herman appealing the response of the City of Boston (City) Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Mr. Herman sent a request to the Department "seeking records related to three former employees who were placed on unpaid administrative leave." In an email on June 3, 2019, Mr. Herman appealed the Department's nonresponse to this office. 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 ofreceipt of the request. G. L. c. 66, § 1O (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, § 1 O(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, § 1 O(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

Sgt. Det. John Boyle SPR19/ll 15 Pg. 2 June 18, 2019 The City's Records Access Officer, Attorney Shawn Williams, sent an email on June 5, 2019 in response to Mr. Herman's request stating he is "actively working with BPD" and intends to provide a response. Attorney Williams also provided a response in an email on June 11, 2019 adding the City "informed Colman that no records exist. Recently Colman renewed his request and [t he City] again reached out to the units within BPD to determine if any records exist. This review is ongoing and is not yet complete. Once [the City has] determined whether any records exist [the City] will provide a written response." It is unclear if the Department possesses any records responsive to Mr. Herman's request. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). Specifically, the Department must explain whether the requested records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b )(ii). If such records were destroyed, the Department must demonstrate whether it followed proper records retention protocol. Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman