Darius Gibson v. Boston, City of - Public Records (SPR 20231132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 9, 2023 SPR23/1132 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square Boston, MA 02201-2013 Dear Attorney Williams: I have received the petition of Darius Gibson 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 April 27, 2023, Mr. Gibson requested: [1] Color crime scene photos for the following case: CC #100287074; and [2] Color ballistic photos for the following cases: CC #100287074 FAS 10-510, and CC #100291587 FAS 10-505. On April 28, 2023, the Department provided Mr. Gibson with a response, indicating, “[y]our request has been received and is being processed. Your request was received in this office on April 27, 2023 and is being processed.” Further, the Department’s response states, “[a]fter a determination regarding the existence of any public records the [Department] will provide a supplemental response to your request…” The Department further indicated, “…the records that you are requesting are older records and will take time to locate, potentially exceeding the 25 business day[s] turnaround policy that we have to produce records pursuant to [the Public Records Law].” As a result of the Department’s April 28th response, Mr. Gibson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Gibson informed this office that as of May 24th, he has not received the requested records. 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 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. SPR23/1132 Page 2 June 9, 2023 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. Timeline for Providing Records The Department’s April 28th response indicated, “…the records [Mr. Gibson] requested are older records and will take time to locate, potentially exceeding the 25 business day turnaround policy that we have to produce records…” The Department is advised, G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Mr. Gibson’s request was submitted on April 28, 2023, and the Department has not provided responsive records pertaining to Mr. Gibson’s request, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must

Shawn A. Williams, Esq. SPR23/1132 Page 3 June 9, 2023 be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Gibson with a response to his request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson