Joshua Dankoff v. Worcester, City of - Law Department (SPR 20201243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7, 2020 SPR20/1243 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Attorney Joshua Dankoff appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Dankoff requested several categories of records related to the Worcester Police Department (Department), including identified Department policies and categories of data regarding Department actions. The City responded on April 24, 2020, providing records responsive to several of Attorney Dankoff’s requests, and indicating that it does not possess records or data responsive to others. Unsatisfied with the City’s response, Attorney Dankoff petitioned this office and this appeal, SPR20/1243, 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, § 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); 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). 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. 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

Janice Thompson, Esq. SPR20/1243 Page 2 August 7, 2020 Current Appeal In its April 24, 2020 response, the City indicated that it does not possess records responsive to several of Attorney Dankoff’s requests. Subsequent to the opening of this appeal, the City provided a supplemental response on July 6, 2020, providing one additional responsive policy, and confirming that it does not possess any responsive records. In his appeal petition, Attorney Dankoff disputes that the City does not possess responsive records. Attorney Dankoff identifies two categories of data that he believes the Department possesses: field interrogation (or stop-and-frisk) incidents, and data regarding the identification of gang members. Attorney Dankoff’s petition is based on the fact that the Worcester Police Department does identify individuals as gang members, and therefore possesses the requested information. He also references one of the policies of the police department that requires the logging of “Field Interrogation reports” upon completion of a shift. In its April 24th response, the City stated that “the Worcester Police Department does not compile data related to this portion of your request in a centralized database that would permit extraction of the requested information.” In its supplemental response, the City explains that it does not possess a database of the information requested by Attorney Dankoff, stating “WPD does not maintain a list of individuals identified as gang involved. The WPD may identify that an individual has participated in gang activity; however a compiled list of individuals does not exist and as initially noted there is no centralized database from which the requested data can be extracted.” The City further explains that “[s]ome demographic data exists within the record of every individual who has been the subject of an arrest, regardless of whether the individual has participated in gang activity. This data does not exist within a separate database of information related to individuals who have participated in gang activity.” No Duty to Create Records; Extraction of Data Under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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, § 10(a)(ii). However, under the Public Records Law, “furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data.” 950 C.M.R. 32.07(1)(f). I find that the City has not met its burden in responding to this request. Based on the City’s response, it appears that it does track the data requested by Attorney Dankoff, although it

Janice Thompson, Esq. SPR20/1243 Page 3 August 7, 2020 states that it does not maintain the information in a list format. If the City does possess the data, then it must explain why it cannot produce it. In its supplemental response, the City offers to provide clarification regarding its responses to Attorney Dankoff’s requests. This office encourages the parties to continue to communicate to facilitate providing responsive records efficiently and affordably. See G. L. c. 66, § l0(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to provide a response to Attorney Dankoff consistent with this order, the Public Records Law, and its Access Regulations as soon as practicable. 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: Joshua Dankoff, Esq.