Colman Herman v. Boston, City of - Law Department (SPR 20201455)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 4, 2020 SPR20/1455 Shawn Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Colman Herman 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 18, 2020, Mr. Herman requested “hard copies and electronic copes of all communications related to the so-called taking of a knee by Boston Police officers, Officer Tavares high-fiving protestors, and any related actions. Communications includes, but are not limited to, emails, letters, memoranda, faxes and notes. . . .” Previous petition and appeal The requested records were the subject of a previous time and fee petition and subsequent appeal. See SPR20/1104 Determination of the Supervisor of Records (July 14, 2020) and SPR20/1364 Determination of the Supervisor of Records (August 24, 2020). I closed SPR20/1364 after this office learned that the Department had provided a response to Mr. Herman on August 20, 2020. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR20/1455, 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. 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 Williams SPR20/1455 Page 2 September 4, 2020 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In the Department’s August 20, 2020 response, it enclosed records responsive to Mr. Herman’s request. In his appeal petition, Mr. Herman states the following: 5) While your ruling was pending, on August 20, 2020, Sergeant Boyle produced a voluminous amount of records virtually all of which consisted of links to a voluminous amount of television programs, radio programs, and newspaper articles in which no mention of the so-called taking of a knee is noted in the narrative provided . . . It was a document dump at its worst. 6) Absent from the production, for example, were any internal BPD communications about the “taking of a knee.” Given the highly controversial nature of police officers “taking a knee,” it strains credibility to think that no internal communications exist on the subject. 7) Accordingly, please order BPD to produce all the responsive records. In an email correspondence dated August 24, 2020, the Department states “[a]ll responsive records have been provided and there are no other records responsive to this request.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Conclusion Whereas the Department confirms there are no additional records responsive to Mr. Herman’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed.

Shawn Williams SPR20/1455 Page 3 September 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman