David Weimer v. Boston, City of - Public Records (SPR 20220895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 26, 2022 SPR22/0895 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 Appeals This request was the subject of previous appeals. See SPR21/0934 Supervisor of Records Determination (April 23, 2021); SPR21/3027 Supervisor of Records Determination (November 30, 2021). In my November 30th determination, I ordered the Department to clarify why it was unable to produce the responsive records. The Department responded on February 28, 2022, stating that it had no responsive records. 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. SPR22/0895 Page 2 April 26, 2022 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. 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. Current Appeal In a previous email included with his petition, Mr. Weimer provides the following clarification: [He is] requesting one or multiple spreadsheets containing the Time and Labor Reports and Overtime Reports for all Boston Police Department employees from January 2019 through the present [March 16, 2021]. Please note: this data is more comprehensive and is not covered by the Employee Earnings Report already available online because that data is the annual summary of earnings and not hours worked and reported. The Department’s February 28th Response In its February 28, 2022 response, the Department states “that there is no one record that exists responsive to [Mr. Weimer’s] request. The BPD did create such records in the past but no longer does so.” Records in Existence As noted in my previous determinations, 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, 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). In this case, where the Department paid overtime to its employees during the time period in question, it remains unclear how the Department would not have the sort of records Mr. Weimer is seeking. Specifically, it is unclear how the Department would not have records containing data more comprehensive than the annual totals listed in the Employee Earnings Report on the City of Boston website. The Department must clarify this.

Shawn A. Williams, Esq. SPR22/0895 Page 3 April 26, 2022 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