Douglas Hansen v. Boston, City of - Police Department (SPR 20211413)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 17, 2021 SPR21/1413 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Douglas Hansen appealing the response of 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 April 22, 2021, Mr. Hansen requested “[a]ny video recordings of Atkinson Street captured on 04-03-21 between 4:00 p.m. and 4:30 p.m., relating to BPD incident number...” On April 30, 2021, the City responded. Unsatisfied with the City’s response, Mr. Hansen petitioned this office, and appeal SPR21/1413 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 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. 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. SPR21/1413 Page 2 June 17, 2021 The City’s April 30th response In its April 30th response the City stated “… the City does not have a camera listed for this location of the incident that you have requested. If a camera is located at this intersection, it may be a 24/7 live feed camera that does not retain footage.” Current Appeal In his current appeal petition Mr. Hansen states “… the City does in fact have several cameras on Atkinson Street. Attached are photos of some, but not all, of the City owned cameras on Atkinson Street. As you can see they are clearly marked with the logo of the City of Boston Police Department. Additionally, those cameras do appear to record video.” Records in existence 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). In light of the issues raised in Mr. Hansen’s appeal regarding the existence of responsive records, I find it is unclear whether responsive records exist. The City must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Order Accordingly, the City is ordered to provide Mr. Hansen with a response to this request 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: Douglas Hansen