Stevan Johnson v. Boston, City of - Police Department (SPR 20213151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 16, 2021 SPR21/3151 Shawn A. Williams, Esq. Records Access Officer Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Attorney Williams: I have received the petition of Stevan Johnson 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 October 29, 2021, Mr. Johnson requested, “…a copy of the deposition testimony” provided by a list of named individuals. The Department provided a response on November 15, 2021. Unsatisfied with the Department’s response, Mr. Johnson petitioned this office and this appeal, SPR21/3151, 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 Williams, Esq. SPR21/3151 Page 2 December 16, 2021 The Department’s November 15th Response On November 15, 2021, the Department asserted it “previously responded to this request. Please refer to that response, attached for reference.” The Department attached their previous response from January 4, 2020 for the same records in which they stated, “the [Department] does possess such records. The records are associated with active litigation…(C.A. No. 1:16-cv- 12538-NMG)…As such, your request is denied.” Current Appeal In his December 2, 2021 appeal, Mr. Johnson stated, “it appears the ‘litigation’ was terminated…” A staff attorney in the Public Records Division reviewed the docket for the U.S. District Court for the District of Massachusetts and it appears that the status of the litigation has changed. It is unclear exactly what records the Department has within its possession. See G.L. c. 66, § 10(a)(ii), (b)(ii) (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). If the Department is withholding the requested information, it must identify the withheld information, cite an exemption as the basis of the withholding, and explain why the exemption applies. See G.L. c. 66, § 10(b)(iv). In light of the above, the Department must clarify whether responsive records can be provided. Conclusion Accordingly, the Department is ordered to provide Mr. Johnson 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: Stevan Johnson