Richard J. Fallon v. Boston, City of - Public Records (SPR 20213000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2021 SPR21/3000 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Plaza Boston, MA 02201 Dear Attorney Williams: I have received the petition of Richard J. Fallon, Esq. 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 October 4, 2021, Attorney Fallon requested, “…all records including any electronic records in connection with the Sept. 20, 1995 arrest and booking of [a named individual]…in particular, I am interested in any record including a response by [the named individual] to any Miranda warning given to him in connection with that arrest and/or booking…My request here is looking for documents other than [a] booking sheet…” The City provided a response on October 20, 2021. Unsatisfied with the City’s response, Attorney Fallon petitioned this office and this appeal, SPR21/3000, 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. 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. SPR21/3000 Page 2 November 18, 2021 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. The City’s October 20th Response In its October 20, 2021 response, the City asserted the “best course of action may be to contact the Office of the District Attorney of Suffolk County. It appears that a representative from the Boston Police Department told you the same in a communication dated October 15, 2021. I provide below contact information from several offices that may be able to assist you. I hope this information is helpful.” Current Appeal 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 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 the desired information. See 950 C.M.R. 32.04(5). Based on the City’s October 20th response, it remains unclear if it possesses additional records responsive to the above request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Attorney Fallon with a response to the request, provided 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: Richard J. Fallon, Esq.