Stevan Johnson v. Boston, City of - Law Department (SPR 20201520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2020 SPR20/1520 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Stevan Johnson appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 7, 2020, Mr. Johnson requested “(ii) a copy of (a) [t]he report, dated 10/1/15, Boston Police Sergeant Detective John McDonough received from Captain James M. Gaugahn on March 2, 2016 the subject being City of Boston Hackney Carriage Driver’s License 9312; (b) [t]he Case# assigned to the complaint filed against Boston Police Sergeant Mark J. Fleming on July 24, 2014.” The City provided a response on August 27, 2020 indicating there were no responsive records to the request. Unsatisfied with the City’s response, Mr. Johnson petitioned this office and this appeal, SPR20/1520, 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. If there are any fees associated with a response a written, good faith estimate must be 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 A. Williams, Esq. SPR20/1520 Page 2 September 14, 2020 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 its August 27th response, the City states “[t]he Hackney Unit has no records responsive to this request. It is not clear whether you seek a record that exists in the custody of the Boston Police Department. If you wish to make a new request you are encouraged to do so.” In his appeal, Mr. Johnson contends the responsive record does exist. In his request to the City, Mr. Johnson cites a September 15, 2016, Internal Affairs Recommendation which references a report dated 10/1/15. This office encourages the parties to communicate to determine which records Mr. Johnson is seeking. Records in existence Further, in light of the issues raised in Mr. Johnson’s appeal regarding the existence of responsive records, and despite the City’s response, I find it is unclear whether responsive records exist, or existed and were destroyed. The City must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). I understand an attorney of the Public Records Division contacted the City regarding this appeal. If such records were destroyed, the City must demonstrate whether it followed proper records retention protocol. Please note, the City must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the City to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm. Conclusion The City is to provide Mr. Johnson with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of

Shawn A. Williams, Esq. SPR20/1520 Page 3 September 14, 2020 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. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stevan Johnson