Joseph C. Borsellino v. Boston, City of - Police Department (SPR 20220124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2022 SPR22/0124 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Joseph C. Borsellino, 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 November 12, 2021, Attorney Borsellino requested records related to an October 4, 2021 motor vehicle accident as follows: “[a]ddress and phone number and/or other contact information of the sole independent witness … [a]nd any video footage of the incident.” The City responded on November 12, 2021. Unsatisfied with the response, Attorney Borsellino petitioned this office and this appeal, SPR22/0124, was opened as 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. SPR22/0124 Page 2 February 1, 2022 The City’s November 12th Response In its November 12th response, the City advised, “… the City generally retains video records for only thirty days. As more than thirty days has elapsed, it is likely that any such record no longer exists.” The City referred Attorney Borsellino to a website to obtain the police report. Current appeal In his appeal, Attorney Borsellino advised that he received the police report and the address and phone number of the witness was redacted. Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. I find that the City must provide the requested records consistent with the Public Records Law and identify an exemption that applies to redact the records from disclosure. G. L. c. 66, § 10(b). As a result, I find that the City did not satisfy its burden in responding to this records request. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is ordered to provide Attorney Borsellino with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph C. Borsellino, Esq.