J.C. Hyness v. Boston, City of - Police Department (SPR 20221858)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2022 SPR22/1858 Shawn 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 J.C. Hyness, on behalf of Cam Goggins, both of Live Boston 617 Inc., 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 June 27, 2022, Mr. Goggins requested “all related reports, BWC footage from the primary officer, images and booking photos as it relates to [an identified incident].” On July 11, 2022, the Department responded. Unsatisfied with the Department’s response, J.C. Hyness petitioned this office and this appeal, SPR22/1858, 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). 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 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 Williams, Esq. SPR22/1858 Page 2 August 24, 2022 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 July 11th Response In its July 11, 2022 response, the Department states that, The records you requested are associated with an active and ongoing investigation. As such, your request is denied, as all records associated with this matter are exempt from disclosure pursuant to [Exemption (f)]….Disclosure of any responsive records would harm the investigative efforts of the Department. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Department’s response, it is unclear why the Department cannot redact identifying information from the responsive records to preserve anonymity or confidentiality. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department has not demonstrated how disclosure of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, the Department did not identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide J.C. Hyness 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

Shawn Williams, Esq. SPR22/1858 Page 3 August 24, 2022 pre@sec.state.ma.us. J.C. Hyness may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: J.C. Hyness