Brianna R. Sullivan, Esq. v. Boston, City of - Police Department (SPR 20232299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 11, 2023 SPR23/2299 Shawn A. Williams, Esq. Director of Public Records City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Brianna Sullivan, Esq., of Kazarosian Costello LLP, 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 August 31, 2023, Marsha Kazarosian, Esq., of Kazarosian Costello LLP, requested: For records relating to [an identified individual], please provide the following: [1] Any and all documents memorializing or referring to communications, including but not limited to correspondence, emails, texts, inter or intra-office memoranda, recorded radio or telephone calls, any recorded audio or video communications or any other method of communications, any records, memoranda, or other writings referring to or memorializing emails, texts, or telephone communications, exchanged between the BPD and the SCDA, or any other law enforcement agency or prosecutor’s office in the Commonwealth of MA; [2] Any and all documents memorializing or referring to communications, including but not limited to correspondence, emails, texts, inter or intra-office memoranda, recorded radio or telephone calls, and recorded audio or video communications, or any other method of communications, any records, memoranda, or other writings referring to or memorializing emails, texts, or telephone communications, exchanged between the BPD and the WRIPD or any other law enforcement agency or prosecutor’s office in the State of RI; [3] Any and all Facebook or other social media postings, press releases, public statements or public warnings, or other media disclosures or communications made by or on behalf of BPD, SCDA, WRIPD, or any other law enforcement agency or prosecutor’s office in MA or RI, including but not limited to the dates 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. SPR23/2299 Page 2 October 11, 2023 of each posting, memorandum, press release, public statement or warning, or other media disclosure or communication, and by whom it was made; [4] Any and all inter or intra-office memoranda made by or on behalf of the BPD, SCDA, WRIPD, or any other law enforcement agency or prosecutor’s office in MA or RI; [5] Any and all witness statements or reports obtained or generated by BPD, SCDA, WRIPD, or any other law enforcement agency or prosecutor’s office in MA or RI; [6] Any personal social media posts made by or on behalf of [three identified individuals] relating to [an identified individual]; [7] Any and all documents identifying any law enforcement officers of the BPD, WRIPD, or any other law enforcement agency in MA or RI who participated in any investigation of [an identified individual], including but not limited to the identification of law enforcement officers who were present during the execution of any search warrants or arrest warrants or were present when [an identified individual] was taken into custody by the BPD and/or WRIPD, and that dates that each law enforcement officer was so present; [8] Any and all personal social media posts made by the BPD or any other person otherwise employed or supervised by the BPD, relating to [an identified individual]; [9] Any and all disciplinary or internal affairs records of [an identified individual]; [10] Any and all documents or communications, including but not limited to correspondence, emails, text messages, inter or intra-office communications or memoranda, recorded radio or telephone calls or other recorded audio or video communications or any other method of communications, or any records, memoranda, or other writings referring to or memorializing emails, texts, or telephone communications, relating to the BPD’s investigation of [an identified individual]. On September 19, 2023, the City responded. Unsatisfied with the City’s response, Attorney Sullivan petitioned this office and this appeal, SPR23/2299, 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.

Shawn A. Williams, Esq. SPR23/2299 Page 3 October 11, 2023 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 September 19th Response In its September 19, 2023 response, the City states: Requests 1, 2, 4, and 5 For the reasons stated below there are no records responsive to requests 1, 2, 4, or 5, as these portions of your request do not comply with the Massachusetts public records law and its access regulations, as it is overly broad and vague. A public records request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). In a recent Suffolk Superior Court case, the court found that “[t]he reasonable description requirements contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” Chawla v. Dep’t of Revenue, Suffolk Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further found “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” Id. (emphasis in original). In accordance with G. L. c. 66, § 10(a)(i) and the Chawla decision, it is unclear with “sufficient particularity” which records you seek. Thus, your request “calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘[regarding]’ the category of materials requested.” Chawla, at 2. Requests 3, and 6 In addition to the explanation above, please note the Boston Police does not speak on behalf nor does it make statements on behalf of other law enforcement

Shawn A. Williams, Esq. SPR23/2299 Page 4 October 11, 2023 agencies. Further the Boston Police has no “social media posts made by or on behalf of [an identified individual] of the BPD.” Requests 7, and 8 To obtain a copy of a police report or accident report please contact: [an identified email address] Please send a copy of your identification. This is needed in the event you have a special right of access to a record that is not available to the average person. If this identification is not needed it will be discarded. Please note this is only for records that exist…. Request 9 There are x [sic] records responsive to your request that relate to internal affairs records of [an identified individual]. Request 10 Please see the response to Requests 7, and 8 above for instructions on how to obtain a copy of a Boston Police incident report. Current Appeal In her appeal, Attorney Sullivan argues, “[i]t is our position that our request for records satisfies the requirements of G.L. c. 66, § 10 and we seek a determination from the Supervisor that BPD must conduct a timely and complete search and produce all records that fall within the definition of ‘public record.’” Attorney Sullivan states: The petitioners request that the Supervisor find and order that: [1] the categories of requests made in the public records request dated August 31, 2023 are sufficiently described such that a records officer familiar with the Boston Police records could locate the relevant records and produce them, and that the Supervisor order BPD to conduct its search for records and produce them accordingly. [2] BPD’s requirement that the petitioner submit a duplicative request to the email address provided by BPD for police reports or investigative materials violated applicable Massachusetts Public Records laws and that any documents that fall within the definition of “public records” as defined by law be produced; [3] BPD must produce all records in its possession that are responsive to Categories 1, 2, 3, 4, 5, 7, 8, and 10.

Shawn A. Williams, Esq. SPR23/2299 Page 5 October 11, 2023 In regard to Requests 7, 8, and 10, please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Given this, the requestor may not be required to identify himself or herself as a condition of obtaining access to the requested records. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (“the statute . . . extends the right to examine public records to ‘any person’ whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity”). Accordingly, the requestor’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. Additionally, based on Attorney Sullivan’s appeal and the City’s response, it is unclear if the City possesses records responsive to Requests 1, 2, 3, 4, 5, 7, 8, and 10. 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). The City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Attorney Sullivan 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. Sincerely, Manza Arthur Supervisor of Records cc: Brianna Sullivan, Esq. Marsha Kazarosian, Esq.