Douglas Smith v. Boston, City of - Police Department (SPR 20221767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2022 SPR22/1767 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Douglas Smith, Esq., of the National Lawyers Guild – MASS Chapter, 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 7, 2022, Attorney Smith requested “…various documents made, held, received or sent by the [Department] or the City, regarding [Department] officers’ self-identification, their display of their name tags or unique officer identification numbers, and the issuance, carrying or presentment of [the Department] officers’ identification cards.” This Office notes that Attorney Smith’s request for these documents was described in nine (9) enumerated items, specifically: [1] Any and all documents, including but not limited to all electronic and written ordinances, charter provisions, minutes, transcripts or other documents, notes, reports, memoranda, emails or any other documents, as that term is defined in Mass. Rule Civ. P. 34(a)(1)(A) containing information regarding the City’s acceptance of police identification requirements, or any rulings, or adoption, or rejection, or consideration of the City’s acceptance of the provisions of Chapter 41 §98C. [2] Any and all policy or practice documents-- as defined above or as defined in Mass. Civil Rule 34(a)— including policy manuals, employee records, employee manuals, memoranda, training materials, contracts, notes, receipts, instructions, notices or the like constituting, commenting upon, enforcing or referencing any duty of Boston police officers to display on their uniforms their name and/or unique officer identification number, as well as any duty to carry, present, and/or offer for inspection their city-issued police identification card upon request. 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. SPR22/1767 Page 2 August 12, 2022 [3] Any and all documents, as defined herein and/or by reference to M.R. Civ. P. 34(a), constituting, responding to, or referencing any complaint, allegation, inquiry, grievance process, investigation, or comment from any source in the past five (5) years regarding or referring to police officers’ not displaying, covering, hiding, or not clearly and openly showing their name and/or unique police identification number. [4] Any and all documents, as defined herein and/or by reference to M.R. Civ. P. 34(a), constituting, responding to, or referencing any complaint, allegation, inquiry, grievance process, investigation, or comment from any source in the past five (5) years, regarding or referring to police officers’ failing to, or refusing to, identify themselves upon request. [5] Any and all documents, as defined herein and/or by reference to M.R. Civ. P. 34(a), constituting, responding to, or referencing any complaint, allegation, inquiry, grievance process, investigation, or comment from any source in the past five (5) years, regarding or referring to police officers’ failing to carry a city- issued police identification card, or failing to or refusing to present their city issued police-identification card upon request, including ignoring such request(s). [6] To the extent not already produced in response to any request above, all documents, as defined herein and/or by reference to Mass. Civil Rule 34(a), including the complete files of any and all investigations, grievances or inquiries, and all orders, conclusions, results, sanctions, penalties, employee records notations, or other action(s) taken in response to any complaint, inquiry or investigation in the past five (5) years regarding: BPD officers’ failing to display, hiding or covering name and/or unique police identification number tags, failing to or refusing to identify themselves (including ignoring such requests), or failing to or refusing to or not responding to a request to present an officer’s city- issued identification card. [7] Any and all documents, including but not limited to all electronic or written documents, emails, notes, and any other documents, as defined under M. R. Civ. P. 34(a), and any communication with any other law enforcement or intelligence agency, city or town, business or individual which state, explain, advise, or determine whether and when other law enforcement and/or intelligence agencies are required to display names and/or identification numbers when working with City of Boston Police or in the City of Boston, and any policies, procedures, requirements or notices, or communication of any kind with any other law enforcement or intelligence agency, business or individual that require, advise, or inform Boston Police officers regarding their wearing or displaying name and/or number identification or tags on their uniform and any requirement or instruction or policies regarding any duty of officers who are employed by the Boston Police Department to have on their person and/or produce their identification card upon

Shawn A. Williams, Esq. SPR22/1767 Page 3 August 12, 2022 request while working on private detail or while working in any other jurisdiction or under the direction of a law enforcement agency other than BPD. [8] To the extent not already produced in response to any request above, any complaints, allegations, inquiries or grievances, and the complete file and results of any investigation or inquiry, including any orders, employee actions, or sanctions resulting from such investigation or inquiry or grievance in the past five (5) years, regarding other jurisdictions’ police officers working in the city failing to display, or hiding or covering their name tag, home police department, or police identification number, or failing to identify themselves or their department or present their police identification card upon request; and [9] To the extent not already produced in response to any request above, any complaints, allegations, inquiries or grievance, and the complete file and results of any investigation or inquiry, including any orders, employee actions, or sanctions resulting from such investigation or inquiry or grievance in the past five (5) years, including any business or individual communications, regarding any complaint, inquiry or comment that Boston police officers, while working in uniform on private details or public or private functions, or at the direction or under the orders of another law enforcement agency, failed to identify themselves, covered, hid or failed to display name tags or identification numbers or failed to present their police identification card upon request. On May 13, 2022, the Department provided a response which included responsive records. As a result of the Department’s May 13th response, Attorney Smith petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Attorney Smith indicates that included with the Department’s May 13th response, the Department provided copies of policies responsive to Items 1, 2 and 7. However, no documents responsive to Items 3, 4, 5, 6, 8 and 9 were provided. In his petition, Attorney Smith explains that each of his requests clearly call for identified documents. Further, he contends, “[a]s to the [r]equests for copies of any public or internal complaints, or records of investigations or disciplinary proceedings arising out of officer’s not displaying name tags or not producing an ID card when asked, [the Department] offered no response, produced no documents, claimed no public records exemptions, and did not inquire of the Requestor or seek to modify, narrow or clarify the Request.” 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

Shawn A. Williams, Esq. SPR22/1767 Page 4 August 12, 2022 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) (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). 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 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, please be advised that under the Public Records Law, 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). Based on the Department’s May 13th response, it is unclear whether the Department has any documents that may be responsive to Items 3, 4, 5, 6, 8 and 9 of Attorney Smith’s request. Therefore, I find that the Department has not met its burden of specificity in responding to Attorney Smith’s request. The Department should clarify this matter. In addition, I encourage the Department and Attorney Smith to communicate in order to facilitate providing records or information that the Department may have in its possession, custody and control. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Attorney Smith with a response to his request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us.

Shawn A. Williams, Esq. SPR22/1767 Page 5 August 12, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Douglas Smith, Esq.