Brian Lees v. Boston, City of - Police Department (SPR 20221144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2022 SPR22/1144 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Brian Lees appealing the response of the Boston Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 2, 2022, Mr. Lees requested a copy of a specified police report dated October 28, 2006. The Department provided a response on May 6, 2022. Unsatisfied with the Department’s response, Mr. Lees petitioned this office and this appeal, SPR22/1144, was opened as a result. Previous Appeal This request is the subject of a previous appeal. See SPR22/1144 Determination of the Supervisor of Records (May 5, 2022). In my May 5th determination, I ordered that a representative from the Department provide Mr. Lees with a response in accordance with the Public Records Law, its Regulations and this order within ten business days. 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). 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 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. SPR22/1144 Page 2 May 24, 2022 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. The Department’s May 6th Response In its May 6, 2022 response, the Department stated that “[t]he Director [of the Public Service Unit] further stated that there are no other records responsive to your request.” Current Appeal In his current appeal, Mr. Lees states that “[t]he Boston Police provides no reason why the report does not exist or why the report is not in its custody.” In a call with a staff attorney with this Division and the Department’s representative, the Department’s representative confirmed that they do not have any additional responsive records. No Duty to Create Records Please be advised, under the Public Records Law, the Department is not required to create records in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y. Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 10(a)(ii). Conclusion Where the Department has provided the requested records, does not possess any additional responsive records to Mr. Lees’ request, and has no duty to create records responsive to the requests, I will not consider this administrative appeal closed. If Mr. Lees is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66, § 10A(c).

Shawn A. Williams, Esq. SPR22/1144 Page 3 May 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Lees