Daniel DeFraia v. Boston, City of - Public Records (SPR 20213041)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2021 SPR21/3041 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Daniel DeFraia 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 November 13, 2019, Mr. DeFraia requested the following: [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. Previous appeals This request was the subject of previous appeals. See SPR19/2468 Determination of the Supervisor of Records (December 19, 2019); SPR20/1991 Determination of the Supervisor of Records (October 29, 2020); SPR21/0081 Determination of the Supervisor of Records (January 28, 2021); SPR21/1087 Determinations of the Supervisor of Records (May 12, 2021, July 8, 2021, and August 19, 2021); and SPR21/2355 Determinations of the Supervisor of Records (September 28, 2021 and October 22, 2021). In my October 22nd determination, the Department was ordered to provide Mr. DeFraia with a response in accordance with the September 28th order. Subsequently, the Department provided a response on November 15, 2021. Unsatisfied 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. SPR21/3041 Page 2 December 2, 2021 with the Department’s response, Mr. DeFraia petitioned this office and this appeal, SPR21/3041, 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. The Department’s November 15th response In its November 15, 2021 response, the Department indicated, “[e]nclosed is a redacted representative sample. Portions are redacted consistent with prior responses.” In a previous September 14, 2021 response, the Department had claimed that G. L. c 258F, § 4, as it operates through Exemption (a), as well as Exemption (c), were applicable to withhold the responsive records from disclosure. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be

Shawn A. Williams, Esq. SPR21/3041 Page 3 December 2, 2021 subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c 258F, § 4 provides in relevant part: (a) Annually, not later than February 1, each certifying entity shall report to the executive office of public safety and security: (i) the number of individuals that requested nonimmigrant status certification; (ii) the number of certification forms that were completed and signed; and (iii) the number of such requests that were denied. The information reported under this subsection shall not include any personal identifying information of an individual requesting nonimmigrant status certification. (b) Annually, not later than April 1, the executive office of public safety and security shall file a report with the clerks of the house of representatives and the senate, the joint committee on the judiciary and the joint committee on public safety and homeland security on the information received under subsection (a). The report shall include, but not be limited to: (i) the number of individuals that requested nonimmigrant status certification, delineated by certifying entity; (ii) the number of certification forms that were completed and signed, delineated by certifying entity; (iii) the number of such requests that were denied, delineated by certifying entity; and (iv) total statewide statistics on nonimmigrant status certifications and denials. The report shall not include information that would allow the public to ascertain the identity of an individual requesting nonimmigrant status certification. The executive office shall also make the report publicly available on its website. G. L. c 258F, § 4. Under Exemption (a), the Department explained that “Section 4 of Chapter 258F states that the information contained in the certifying documents ‘shall not include information that would allow the public to ascertain the identity of an individual requesting nonimmigrant status certification. . . . The information contained in the documents responsive to this request is identical to the information described in this statute. . . .” I find the Department has met its burden in redacting the records pursuant to G. L. c 258F, § 4, as it operates through Exemption (a) of the Public Records Law. As such, I decline to opine on the Department’s Exemption (c) claim in support of non-disclosure.

Shawn A. Williams, Esq. SPR21/3041 Page 4 December 2, 2021 Additional records Further, Mr. DeFraia claims that the Department “. . . still has yet to fulfill other requirements of my request, including, producing ‘copies of any policies or procedures that outline the [Department’s] process in reviewing U visa certification requests.’ The [Department] should know that the above cited law also requires, ‘A certifying entity’ - meaning the [Department] to ‘adopt a policy for completing and signing nonimmigrant status certification forms.’ So, the [Department’s] policy should exist, unless [it] is violating the law.” In a previous response provided on April 27, 2021, the Department stated the following regarding Requests 1, 2, and 4, of Mr. DeFraia’s request: There are no records responsive to Request 1. The [Department] does not compile data related to U-Visa certification. Further, the [Department] does not “deny” such certifications. As such, there are no records responsive to Request 1. . . . There is one (1) document responsive to Request 2, and it is provided. . . . As the Department does not “deny” certifications, there are no records responsive to Request 4. In an April 27th correspondence to the Department and this Office, Mr. DeFraia stated the following: Part 1. The denial is incorrect. As I explained in a previous email, “A law enforcement agency must confirm cooperation by signing a five-page form called a certification.” So, the [Department] – as a law enforcement agency - does in fact sign (or not). Clearly, the [Department] knows how many U Visa certification forms it has signed or refused to sign. Part 2. The records provided do not satisfy my request. “I had requested copies of any policies or procedures that outline the [Department’s] process in reviewing U visa certification requests.” However, the records sen[t] are from the Department of Homeland Security. Clearly, the [Department] did not perform an adequate search. And, instead, provided public records that appear in a Google search. . . . Part 4. The denial of part 4 is based on a misreading of fact. As stated earlier, the [Department] can refuse to certify that a person cooperated with an investigation. As such, the [Department] should supply all releasable records, police reports and other attachments, including emails. In light of the above, it is unclear if the Department possesses additional records that are responsive to Mr. DeFraia’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). The Department must clarify this matter. --

Shawn A. Williams, Esq. SPR21/3041 Page 5 December 2, 2021 Conclusion Accordingly, the Department is ordered to provide Mr. DeFraia 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: Daniel DeFraia