David Weimer v. Boston, City of - Public Records (SPR 20213027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2021 SPR21/3027 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 David Weimer of MuckRock News 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 March 16, 2021, Mr. Weimer requested “spreadsheets containing the Time and Labor Reports and Overtime Reports for all Boston Police Department employees from January 2019 through the present.” Mr. Weimer also provided descriptions of specific data fields he is seeking, to include the following descriptors: “ID, NAME, RANK, ASSIGNED_DESC, CHARGED_DESC, OTDATE, DESCRIPTIONS, OTCODE, DESCRIPTION, STARTTIME, ENDTIME, WRKDHRS, OTHOURS, OTCOST.” Previous Appeal This request was the subject of a previous appeal. See SPR21/0934 Supervisor of Records Determination (April 23, 2021). In my April 23rd determination, I ordered the Department to clarify whether it possessed records responsive to Mr. Weimer’s request. The Department responded on September 7, 2021, providing a link to the City of Boston payroll website. Unsatisfied with the Department’s response, Mr. Weimer 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. SPR21/3027 Page 2 November 30, 2021 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. Att’y 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. Current Appeal In his appeal petition, Mr. Weimer contends that “creating a report from a database is not considered additional research but is instead considered as existing records. In addition, as [Mr. Weimer has] stated in previous correspondence, the department has been able to produce these records as recently as 2016.” The Department’s September 7th Response In its September 7, 2021 response, the Department provides a link to the payroll website for City of Boston employees, and argues that “this appears to be a request to conduct research; the Massachusetts public records law applies only to records that exist.” The Department is reminded that the definition of a “public record” in Massachusetts 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 the Commonwealth to serve a public purpose, unless it falls within a statutory exemption. G. L. c. 4, § 7(26). This definition does not distinguish between records. Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes “public records.” 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, 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). The Department is also advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- ------------------------------ 90 (1979). Further, in accordance with the Public Records Access regulations, “furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the

Shawn A. Williams, Esq. SPR21/3027 Page 3 November 30, 2021 time of the request and is segregable from nonresponsive and exempt data.” 950 C.M.R. 32.07(1)(f); see also G. L. c. 66, § 6A(d). Accordingly, it would not constitute “research” to provide data fields from an existing database. Based on the Department’s response, it remains unclear why producing the responsive records would constitute research or creation of a record. In this case, Mr. Weimer has provided descriptions of the data fields he is seeking, and those data fields are not included in the payroll website linked by the Department. The Department must clarify why it is unable to provide such records. Conclusion Accordingly, the Department is ordered to provide Mr. Weimer with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Weimer