Daniel DeFraia v. Boston, City of - Public Records (SPR 20212355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2021 SPR21/2355 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 Daniel DeFraia appealing the response of the City of Boston (City) Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. DeFraia requested: 1. Data showing how many U-Visas the [Department] has provided and denied since 2000. The U-Visa gives temporary status to immigrant crime victims who are helpful in a law enforcement investigation or prosecution; 2. Copies of any policies or procedures that outline the [Department’s] process in reviewing U-Visa certification requests; 3. Copies of any and all Supplement B (U-Visa certification) forms, and accompanying attachments (including but not limited to, police reports and any other investigative records), approved by the [Department] in 2018; and 4. Copies of any and all Supplement B (U-Visa certification) forms, and accompanying attachments (including but not limited to, police reports and any other investigative records), denied by the [Department] in 2018. On April 7, 2021 the Department provided a response. Unsatisfied with the Department’s response, Mr. DeFraia petitioned this office and the previous appeal was opened as a result. See SPR21/1087. 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 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. SPR21/2355 Page 2 September 28, 2021 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. Previous Determinations This request was the subject of previous determinations. See SPR19/2468; SPR20/1991; SPR21/0081; and SPR21/1087 Determinations of the Supervisor of Records (Supervisor) (December 19, 2019; October 29, 2020; January 28, 2021; July 8, 2021 and August 19, 2021). In the July 8th determination for SPR21/1087, I ordered the Department to provide Mr. DeFraia with a sample of the redacted records to decide whether he still seeks the remaining requested records. Where Mr. DeFraia did not receive a response after my July 8th determination, I again ordered the Department to provide a response within five (5) days of my August 19th determination. The Department provided a response on September 14, 2021. Unsatisfied with the Department’s response, on September 14th, Mr. DeFraia petitioned the Supervisor and the current appeal was opened. In its September 14th response, the Department indicates that while the Supervisor ordered the Department to provide a representative sample record, redacted to omit exempt information, the Department cannot do so. It is the Department’s position that due to recently enacted legislation, release of the records is prohibited. Despite the City’s September 14th response, it remains unclear how this legislation allows the requested records to be withheld in their entirety. Order Accordingly, the Department is again ordered to provide Mr. DeFraia with a representative sample of the requested records within ten (10) 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.

Shawn A. Williams, Esq. SPR21/2355 Page 3 September 28, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Daniel DeFraia