Makalah Lacy v. Boston, City of - Police Department (SPR 20211150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2021 SPR21/1150 Shawn A. 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 Makalah Lacy 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 March 23, 2021, Ms. Lacy requested, among other things, “all body camera footage by Boston police officers . . . for [certain] dates regrading incidents” with an identified individual, and she indicated that she was “the person whose image or voice and likeness is in the recordings.” The Department responded on April 24, 2021, indicating that it was “mailing the body worn camera footage” to Ms. Lacy. Unsatisfied with the Department’s response, Ms. Lacy appealed, and this case was opened as a result. Separate Appeal For clarification, I note that part of Ms. Lacy’s original request to the City was the subject of a separate appeal. See SPR21/1012 Supervisor of Records Determination (May 5, 2021). That case concerned her requests for the transcripts of 911 calls, whereas this case concerns the recordings of body camera footage. 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 A. Williams, Esq. SPR21/1150 Page 2 May 14, 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 her appeal petition, Ms. Lacy contends that the Department’s response did “not provid[e] all body camera footage of March 8th.” She explains that on that day she was in the presence of multiple officers who had their body cameras on. She also states that she “did not receive a reason why [the] body cam footage was not provided.” Ms. Lacy also indicates that “body cam footage from March 9 that was provided to [her] was a corrupted file [and she] requested a new file be sent to [her] through a hard drive or through email.” Further, she “received one video for that day and there was over five officers with body cameras on that day that should’ve been recording so [she is] requesting that [she] receive all of [that] footage as well. Or an explanation on why those officers were not filming at that time.” Records in Existence Based on the Department’s response, it is unclear if it possesses additional records responsive to Ms. Lacy’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, it is unclear whether the Department possesses body camera footage from other officers who were present on the dates in question. The Department must clarify this. Preferred Format of the Requestor A records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In light of Ms. Lacy’s appeal, I find the City must clarify whether the responsive recordings can be provided in the format that Ms. Lacy requested; specifically in an uncorrupted file either on a hard drive or by email. I encourage the parties to work together to resolve these outstanding issues.

Shawn A. Williams, Esq. SPR21/1150 Page 3 May 14, 2021 Conclusion Accordingly, the Department is ordered to provide Ms. Lacy with a response to her 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: Makalah Lacy