David Weimer v. Boston, City of - Public Records (SPR 20202507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2020 SPR20/2507 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 David Weimer 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). Specifically, on November 20, 2020, Mr. Weimer stated: According to data submitted to the Boston City Council for the 16 November 2020 hearing on Boston Police overtime, the Boston Police Department administrators stated that “The Chief of the Bureau of Field Services meets with the District Captains on a quarterly basis for a Personnel Analysis Meeting (PAM). During those meetings the districts personnel roster is examined as is the workload which includes calls for service, crime date and peculiarities, and disposition of the personnel over the three shifts. Adjustments and changes may be made at those times.” I am seeking all records, data, and documents prepared for and used at, during, or in preparation for the Personnel Analysis Meetings for the past 4 quarters for all Districts. The City provided a response on November 23, 2020, denying access to responsive records pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, Mr. Weimer petitioned this office and this appeal, SPR20/2507, 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 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. SPR20/2507 Page 2 December 30, 2020 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 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. The City’s November 23rd response In its November 23, 2020 response, the City indicates that it “. . . is denying your request for any and all public records regarding PAM. Pursuant to M.G.L. c. 4, § 7(26) (c), these records are confidential in nature and are regarding personnel records which are exempt.” In a correspondence on November 23rd, Mr. Weimer states the following: Based on the description of the materials for these meetings submitted to the City Council, it seems that not all the records prepared for and used at the PAMs are covered under M.G.L. c. 4, § 7(26) (c). So I would happily amend down this request to all materials that do not pertain to “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” as the Guide to the Massachusetts Public Records Law . . . suggests drives these exceptions. That is, information such as data on the “workload which includes calls for services, crime date and peculiarities” as wells as the numbers of the aggregate staffing levels to which the departments make “adjustments and changes” to at these meetings. . . . Based on Mr. Weimer’s modified request, it is unclear if the City possesses records responsive to this request. 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). The Department must clarify this matter. Also, a 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 G. L. c. 66, § 10(b)(iv).

Shawn A. Williams, Esq. SPR20/2507 Page 3 December 30, 2020 Conclusion Accordingly, the City is ordered to provide Mr. Weimer with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: David Weimer