Stevan Johnson v. Boston, City of - Public Records (SPR 20222650)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2650 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Stevan Johnson appealing the response of the City of Boston (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2022, Mr. Johnson requested, “[a] copy of the deposition testimony provided under oath by [two identified individuals] who have been affiliated with the Police Department of the City in an official capacity at some time between February 29, 2004 and July 24, 2022.” Previous Appeal This request was the subject of a previous appeal. See SPR22/2466 Determination of the Supervisor of Records (November 14, 2022). In my November 14th determination, I closed the administrative appeal when I learned the City provided a response to Mr. Johnson on August 26, 2022. Unsatisfied with the City’s response, Mr. Johnson petitioned this office and this appeal, SPR22/2650, 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. SPR22/2650 Page 2 November 29, 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. Attorney 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. The City’s August 26th Response In its August 26, 2022 response, the City states that, “[a] response to this request was provided in response to a prior request. There are no other records. See R002331-110521.” Current Appeal In his appeal, Mr. Johnson assert: On January 31, 2020 the City of Boston Director Public Records asserted in a written response that, indeed: “The City of Boston Law Department does possess such records.” However, although the requested records (a) do exist and (b) are in the possession, custody, and control of the City of Boston, they were nevertheless not produced based upon a purported “protective order.” That purported “protective order” no longer applies, if one ever did. See SPR20/0151. Now that it has been shown the “protective order” clearly does not apply, if one ever did, the City of Boston asserts the requested records do not exist. Based on the City’s response, in conjunction with Mr. Johnson’s appeal, it is unclear if the City possesses 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). To the extent that records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the City is ordered to provide Mr. Johnson with a response to the 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 this response to this office at pre@sec.state.ma.us.

Shawn A. Williams, Esq. SPR22/2650 Page 3 November 29, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Stevan Johnson