David J. McLellan v. Boston, City of - Public Records (SPR 20222652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2022 SPR22/2652 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of David John McLellan appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 4, 2022, Mr. Herman requested “[a]rrest reports/records for [named address] for the date December 22, 1992.” On November 7, 2022 and November 14, 2022, the City responded. Unsatisfied with the City’s responses, Mr. McLellan petitioned this office and this appeal, SPR22/2652, 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. 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. 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. SPR22/2652 Page 2 December 2, 2022 The City’s November 7th and November 14th responses In its November 7, 2022 response, the City indicated that it could only provide the requested records if they were provided with a last name of a person involved in the alleged incident. In its November 14, 2022 response, the City reiterated its November 7th claim. Current Appeal In his current appeal, Mr. McLellan claimed that because he was looking for all reports from the named address that a name search would not provide all responsive records. In its November 14, 2022 response to Mr. McLellan the City explained that it needed the name of the person arrested to search for the requested records stating, “…[o]ld reports are stored on CDs. We would need this information to search for the records.” Records in existence 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). Based on the City’s response, it is unclear whether responsive records exist. The City must explain whether responsive records exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). This office encourages Mr. McLellan and the City to communicate to facilitate providing responsive records if they exist. 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)(b). Mr. McLellan may wish to provide applicable factors to enable the City search for the requested records. Conclusion Accordingly, the City is ordered to provide Mr. McLellan 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 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: David John McLellan