Colman Herman v. Cambridge, City of - Office of the City Solicitor (SPR 20240223)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2024 SPR24/0223 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Colman Herman appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 26, 2023, Mr. Herman requested the following records: [A]ny and all documents related to the physical and mental requirements for the following. 1) Becoming a Cambridge police officer 2) Cambridge police officers on the job Previous Appeal This request was the subject of a previous appeal. See SPR24/0025 Determination of the Supervisor of Records (January 18, 2024). In my January 18th determination, I found that Mr. Herman had not asserted a violation of G. L. c. 66, § 10 in his appeal petition. Subsequently, Mr. Herman again petitioned this office appealing the City’s January 3, 2024 response, and this case was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response to this office and Mr. Herman on February 5, 2024. 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, 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

Seah Levy SPR24/0223 Page 2 February 8, 2024 § 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. Attorney 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 January 3rd Response In its January 3, 2024 response, the City provided hyperlinks to two websites which include numerous records responsive to Part 1 of the request. Regarding Part 2 of the request, the City provided copies of “two contracts with the Cambridge Police Patrol Officers Association and the Cambridge Police Superior Officers Association,” each with a separate table of contents. The City also provided a copy of “Officer-Involved Shooting Guidelines as ratified by the IACP Police Psychological Services in 2018,” and hyperlinks to two additional websites containing further responsive records. Current Appeal In his January 25, 2024 appeal petition, Mr. Herman contends that “there was ... no information in any of the linked documents that had to do with [his] public records request.” And he requests that this office “order the City of Cambridge to produce responsive records.” In a subsequent email to the City on February 5, 2024, Mr. Herman asks the City the following: Where in the 152 pages that you sent me are the records that are responsive to what I am seeking here? Would you kindly use your “superior knowledge” and help me out with this? No Duty to Answer Questions, Conduct Research, Create Documents Please be advised that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

Seah Levy SPR24/0223 Page 3 February 8, 2024 In a telephone conversation with this office on February 6, 2024, the City confirmed that it has provided Mr. Herman with all records in its possession responsive to this request. Conclusion Where the City confirmed that it does not possess additional records responsive to Mr. Herman’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman