Brianna R. Sullivan, Esq. v. Boston, City of - Police Department (SPR 20232697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2023 SPR23/2697 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Brianna Sullivan, Esq., on behalf of Marsha Kazarosian, Esq., both 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, Attorney Kazarosian 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. SPR23/2697 Page 2 November 21, 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]. Prior Appeal This request was the subject of a prior appeal. See SPR23/2299 Determination of the Supervisor of Records (October 11, 2023). In my October 11th determination, I found that it was unclear if the City possesses records responsive to Requests 1, 2, 3, 4, 5, 7, 8, and 10. The Department responded on October 11, 2023. Unsatisfied with the response, Attorney Sullivan petitioned this office and this appeal, SPR23/2697, 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

Shawn A. Williams, Esq. SPR23/2697 Page 3 November 21, 2023 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. 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 October 11th Response In its October 11, 2023 response, the City asserted that “[t]he City stands by its previous response,” Current Appeal In her appeal, Attorney Sullivan argues, “[w]e are renewing our appeal of the City of Boston’s response to our request as they continue to be non-compliant with the Public Records Law and, now, the Supervisor’s Order.” Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement 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.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[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.” In this case, the requestor has provided specific descriptions for the categories of records she is seeking. While the request may result in a large volume of responsive records, she has provided sufficient particularity required to identify the documents she is seeking. To the extent possible, the City must provide responsive records on a rolling basis.

Shawn A. Williams, Esq. SPR23/2697 Page 4 November 21, 2023 In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Attorney Sullivan and the City to communicate in order to facilitate producing records efficiently and affordably. Attorney Sullivan may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). 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

Shawn A. Williams, Esq. SPR23/2697 Page 5 November 21, 2023 ten 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: Brianna Sullivan, Esq. Marsha Kazarosian, Esq.