Darius Gibson v. Boston, City of - Public Records (SPR 20231762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2023 SPR23/1762 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 Darius Gibson appealing the response of the City of Boston (City) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 16, 2023, the City received a records request from Mr. Gibson in which Mr. Gibson requested: [1] Color crime scene [photos] [for an identified case] [2] Color ballistic [photos] [for two identified cases.] Previous Appeal This request was the subject of a previous appeal. See SPR23/1533 Determination of the Supervisor of Records (July 17, 2023). In my July 17th determination, I closed the appeal where I learned that the City provided Mr. Gibson with a further response dated June 30, 2023. Unsatisfied with the City’s response, Mr. Gibson petitioned this office and this appeal, SPR23/1762, 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. SPR23/1762 Page 2 August 14, 2023 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 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 City’s June 30th Response In its June 30, 2023 response, the City states: Our office has on record that we did send out the responsive records requested on June 21, 2023…. To resolve this issue, enclosed are the colored copies of ballistic photos along with this response letter. Current Appeal In his appeal, Mr. Gibson asserts, “I’m requesting color crime scene photos[.] The B.P.D. did not mail me color crime scene photos. They only mailed me color ballistic photos[.]” Based on Mr. Gibson’s appeal, it is unclear if the City possesses additional records responsive to the request. Particularly, it is uncertain if the City possesses “color crime scene photos[.]” 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). Conclusion Accordingly, the City is ordered to provide Mr. Gibson 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. SPR23/1762 Page 3 August 14, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson