Colman M. Herman v. Boston, City of - Police Department (SPR 20210982)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2021 SPR21/0982 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). On February 2, 2021, Mr. Herman requested “any and all use-of-force reports and/or the use of defensive tactics reports filed with the Boston Police Department in 2018, 2019 and 2020.” Previous Appeal This request was the subject of a previous appeal. See SPR21/0421 Supervisor of Records Determination (March 4, 2021). In my March 4th determination, I ordered the Department to provide Mr. Herman with a response to his request. Subsequently, the Department provided Mr. Herman a list of over three hundred incident reports listed by type and date. On April 15, 2021, the Department stated that it “will need to review each item on the list” and “[t]here is no timeline on how long it will take to facilitate this.” Unsatisfied with the Department’s response, Mr. Herman 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. 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. SPR21/0982 Page 2 May 3, 2021 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 his appeal petition Mr. Herman notes that “[t]he public records law imposes deadlines for producing public records” and he asks that the City “state when the responsive records will be produced or at least provide an estimate.” The Department’s April 15th response In its April 15, 2021 response, the Department stated that it “will need to review each item on the list [of reports], review the corresponding record for redactions, and provide a record to [Mr. Herman]. There is no timeline on how long it will take to facilitate this.” The Department also offered Mr. Herman the opportunity “to amend this request . . . otherwise there is no other update at this time and records will be provided as they are made available.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Mr. Herman’s request was originally submitted on February 2, 2021, and the Department has not provided responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Accordingly, I find the Department must provide an estimated date as to when it expects to complete its review and provide the requested records. See G. L. c. 66, § 10(a) (records must be provided without

Shawn Williams, Esq. SPR21/0982 Page 3 May 3, 2021 unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response to his request 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: Colman Herman