William Fernandes v. Boston, City of - Public Records (SPR 20220180)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 3, 2022 SPR22/0180 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 William Fernandes appealing the response of the City of Boston (City) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R.32.08(1). On March 19, 2021, Mr. Fernandes requested, “… a copy of an IAB investigation completed at the South End office I filed in relation to a Boston Police office being hostile at a traffic stop … [in] November 2017 [and] …copies of any investigation in relation to the two attached emails in relation to being mistreated as a rideshare driver.” Previous appeal The requested records were the subject of a previous appeal. See SPR21/1021 Determination of the Supervisor of Records (May 5, 2021). The City responded on January 4, 2022. Unsatisfied with the response, Mr. Fernandes petitioned this office and this appeal, SPR22/0180, 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 municipality or agency 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(d)(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 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. SPR22/0180 Page 2 February 3, 2022 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). The City’s January 4th Response In its January 4th response, the City advised, “[a] review indicates no recent activity on this request. Should you still seek records I encourage you to file a new request using the City's public records request portal.” Based on the City’s response, it is unclear if the City possesses any records responsive to the 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). 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). Consequently, the City must clarify whether responsive records exist. Conclusion Accordingly, the City is ordered to provide Mr. Fernandes 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: William Fernandes