David Weimer v. Boston, City of - Public Records (SPR 20210934)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 23, 2021 SPR21/0934 Shawn A. Williams, Esq. Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of David Weimer of MuckRock News 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). On March 16, 2021, Mr. Weimer requested “spreadsheets containing the Time and Labor Reports and Overtime Reports for all Boston Police Department employees from January 2019 through the present.” Mr. Weimer also provided descriptions of the data fields he expected the reports to contain. The Department responded on March 19, 2021, indicating “that [it] do[es] not have existing records that would be responsive nor [is the Department] required to conduct research or create a new record per MA Public Record Law.” Unsatisfied with the Department’s response, Mr. Weimer appealed, and this case 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 Williams, Esq. SPR21/0934 Page 2 April 23, 2021 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 On March 22, 2021, Mr. Weimer sent a number of questions to the Department seeking to clarify its response, and linked to samples of similar reports provided by the Department in previous years. I understand the Department has not responded to these queries. In his appeal petition Mr. Weimer contends “creating a report from a database does fall under the MA Public Record law.” It is unclear how the Department would not possess records responsive to Mr. Weimer’s 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). Specifically, where Mr. Weimer provides a list of data fields he is seeking, and samples of similar reports produced by the Department in previous years, it is not clear how the Department does not possess records responsive to Mr. Weimer’s request. The Department must clarify these matters. Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining their desired information. See 950 C.M.R. 32.04(5). A records access officer may “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 agency or municipality to produce records sought more efficiently and affordably.” G. L. c. 66, §10(b)(vii). Conclusion Accordingly, the Department is ordered to provide Mr. Weimer with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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