Joseph C. Borsellino v. Boston, City of - Public Records (SPR 20202363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2020 SPR20/2363 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. 6. All photographs and damage appraisals of all police vehicles which were in collision with the cycle of [a named individual].” 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 SPR20/2363 Page 2 December 14, 2020 Previous appeal This request was the subject of a previous appeal. See SPR20/1210 Determination of the Supervisor of Records (July 30, 2020). In my July 30th Determination, I found the Department’s response did not contain the specificity required in a denial of access to public records and I ordered the Department to identify what records it has in its possession, custody or control that are responsive to Attorney Borsellino’s request. Unsatisfied with the response, Attorney Borsellino appealed and SPR20/2363 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). Current appeal In his appeal, Attorney Borsellino noted that the Department produced certain documents. Attorney Borsellino states in his November 30th appeal, “[t]he Department phoned Mr. Hunter's counsel acknowledging, for the first time, that there were in fact an abundance of scene witnesses, that Department officers spoke to them and that Department took notes but denied producing the identities of any scene witnesses claiming that their identities had to be kept ‘private" to encourage witnesses to cooperate with the police.’” It is unclear if the Department possesses the records requested by Attorney Borsellino. See G. L. c. 66, § 10(a)(ii), (b)(ii), (iii). 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), (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, § 10(b)(iii). If the records are within the Department's possession and they intend to withhold the documents, an exemption must be provided as stated above. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption).

Martha DeMaio SPR20/2363 Page 3 December 14, 2020 Accordingly, the Department is ordered to review the requests made by Attorney Borsellino and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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: Joseph C. Borsellino, Esquire