Kelly Ianelli v. Boston, City of - Public Records (SPR 20232502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2023 SPR23/2502 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Kelly Wallace Ianelli, Esq., of Davids & Cohen, P.C., 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 July 7, 2023, Attorney Ianelli requested the entire file pertaining to a motor vehicle accident on January 3, 2020 at a particular location involving two identified persons; Attorney Ianelli’s File No. 362-1106 and the Department’s Incident Number 202000599. Specifically, Attorney Ianelli requested: [A]ll documents and records of the Department, and any related entities, relating concerning, or pertaining to the [referenced] motor vehicle accident, including (but not limited to) all reports, findings, records, documents, investigative files, 911 calls and recordings, photographs in their JPEG form, video files, interviews, interview notes, draft reports, statements (recorded, transcribed or otherwise), evidence lists, press releases, social media posts, and all other documents and/or items, concerning, relating, or referring to the [referenced incident]. On July 7, 2023, the Department acknowledged Attorney Ianelli’s request, and on July 21, 2023, the Department informed Austin Crabtree, a paralegal at Davids & Cohen, P.C., “[d]ue to the nature of your request additional time is needed. As such, the [Department] will need up to, but no more than, fifteen (15) additional business days to review and process your request.” Mr. Crabtree followed up with the City, seeking an update. On August 22, 2023, Attorney Williams provided a letter, stating, “[t]hank you for your communications seeking updates on the status of this request. I believe the [Department’s] review is nearly complete and it is likely a response will be provided to you by the end of this week.” 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. SPR23/2502 Page 2 October 31, 2023 On October 16, 2023, the Department provided a link to the records responsive to the request, stating, “[t]hese records have been released to the Public Records Center.” On October 20, 2023, Mr. Crabtree contacted Attorney Williams, asserting, “[a]ttached, please find an appeal regarding the partial response by the [Department] to public records request B002126-070723. The same day, Mr. Crabtree contacted the Public Records Division seeking a public records appeal from the October 16th production of records. As a result, this office opened an appeal. 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) (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. Current Appeal In her petition, Attorney Ianelli stated the following: The records available from the Public Records Center included the following: the combined arrest and incident report, copies of emails between Auto Investigator P.O. . . ., Assistant District Attorney . . ., and Attorney . . ., and photographs taken during the investigation of the motor vehicle accident. The following items were not provided:  911 calls and recordings;  Massachusetts Uniform Citations;  Body Worn Camera Footage; and,  Investigation reports completed by the [Department].

Shawn A. Williams, Esq. SPR23/2502 Page 3 October 31, 2023 Through Discovery, the [firm] has learned the [Department] conducted an investigation and Officer Hanley authored a Crash Reconsideration Report. On August 26, 2021, Detective Hooley, of the Bureau Investigate Services authored an Investigative Report regarding the motor vehicle accident. These documents were not included in the documents received from the [Department].” Based on the Department’s response, in conjunction with Attorney Ianelli’s petition, it is unclear if the Department possesses additional records responsive to the request. Specifically, the Department must clarify whether it possesses records identified in Attorney Ianelli’s petition. 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 responsive records exist, I find the Department 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). Subsequent to the opening of this appeal, on October 20, 2023, Attorney Williams emailed Mr. Crabtree and copied the Public Records Division, indicating, “I will alert the [Department] and ask that they review your request and provide a supplemental response.” Conclusion Accordingly, the Department is ordered to provide Attorney Ianelli with a response to the 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: Kelly Wallace Ianelli, Esq. Austin Crabtree