Joseph Borsellino v. Boston, City of - Law Department (SPR 20201210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 30, 2020 SPR20/1210 Martha DeMaio Records Access Officer Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Attorney Joseph C. Borsellino, of Dailey & Borsellino, P.C., appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 5, 2020, Attorney Borsellino requested Department materials related to a May 30, 2020 incident as follows: “1. All 911 tapes, recordings, computerized, written or other notes and records relating in any way to calls referring to the matters addressed in this letter, including the citizen calls to the police, the police response and the resulting collision and injury of [a named individual] 2. All dispatch tapes, notes, records and recordings from 4 - 7PM on Saturday, May 30, 2020 in any way relating to the subject matter described in this letter. 3. All audio and video tapes from cameras i) located on any poles, emergency or other, ii) police vehicles, and iii) police officers' bodies from 4 - 7 PM on Saturday, May 30, 2020 which depict: A. The parking lot located behind the rear entrance to the Franklin Park Zoo and the public park adjacent thereto; B. Any and all participants in the 911 calls and witnesses to the related events in the parking lot and public park; C. Any pursuit of [a named individual] and the collision between a police cruiser and [a named individual]; and, D. The interview by police personnel of all 911 callers, witnesses to the 911 calls and the resulting pursuit and collision, and interviews of [a named individual]. 4. All police, detective, reconstructive and other reports pertaining to the 911 calls, the police response and the resulting pursuit of and collision with[a named individual] and all police investigation of all related matters. 5. All photographs of the collision scene, its participants and witnesses. 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

Martha DeMaio SPR20/1210 Page 2 July 30, 2020 6. All photographs and damage appraisals of all police vehicles which were in collision with the cycle of [a named individual].” Unsatisfied with the response, Attorney Borsellino appealed and SPR20/1210 was opened as 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, § 10A(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, § 10(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). The Department’s July 10th response In its July 10th response, the Department stated, “the 911 call [was located] and the transcript [was] sent over to the MA State Police (MSP) … [because] the investigation belongs to the MSP.” The Department referred Attorney Borsellino to the Media Spokesperson for the MSP. Burden of specificity; segregable portions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); See also Dist. Attorney for the Norfolk Dist. V. Flatley, 419 Mass. 507, 511 (1995) (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 ... "); see also Globe Newspaper ----------------- Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The Department’s July 10th response did not contain the specificity required in a denial of access to public records. The Department must identify what records it has in its possession,

Martha DeMaio SPR20/1210 Page 3 July 30, 2020 custody or control that are responsive to Attorney Borsellino’s request. As a result, I find that the Department did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to review the request and provide a response to Attorney Borsellino made in accordance with the Public Records Law, its Access Regulations and this order as soon as is practicable. 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: Joseph C. Borsellino, Esq.