Kelly Ianelli v. Boston, City of - Police Department (SPR 20240239)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 8, 2024 SPR24/0239 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 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. 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]. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2502 Determination of the Supervisor of Records (October 31, 2023). In my October 31st determination, I directed the Department to clarify if it possesses additional records. On November 7, 2023, the Department responded, stating, “[it] is currently working on this request and fully intends to render a response. I will provide an update to you once additional information is provided to me by the [D]epartment.” On November 15, 2023, the Department provided another update, stating, “I have checked on the status of your July 7th public records request and it appears that it is currently in progress. I believe by next week, we can provide you with a response to request…” 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. SPR24/0239 Page 2 February 8, 2024 On November 27, 2023, the Department provided another response, stating, “[w]e have reviewed our files and have located records that correspond to your request. These records have been released to the Public Records Center…” On December 20, 2023, Attorney Ianelli emailed representatives of the Department, stating, “[a]fter a review of the records produced in response [to the July 7th request], it has come to our attention that there are still documents missing. Although it is impossible for us to know all of the materials that were not sent to us, we do know that the following items were omitted because they were contained within the criminal file and yet were not produced by the [Department] and yet were not produced by the [Department] in response to our Public Records Request: Body camera footage, Crash reconstruction report, Field sketch and measurements, Bureau of Investigative Services Investigation Report.” After receipt of Attorney Ianelli’s December 20th email, Attorney Williams stated in a December 29th response, “[t]hank you for your communication … Unless I am mistaken, [the Department] released records responsive to this request and you asked whether any such records exist. I contacted the [Department] and asked that they review this portion of your communication to see if any such additional records exist. A follow-up response will be provided at the conclusion of that review…” After not receiving the four records listed in her December 20th email to the Department, Attorney Ianelli petitioned this office and the current appeal was opened. 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. 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.

Shawn A. Williams, Esq. SPR24/0239 Page 3 February 8, 2024 Current Appeal In the appeal petition, Attorney Ianelli indicates, “[t]he following items, which had been requested, were again not provided: Massachusetts Uniform Citations; Body Worn Camera Footage; Field Sketches and Measurements; and, Bureau of Investigative Services Investigations Report(s). . . . On January 12, 2024 [we] emailed [Attorney] Williams and Attorney Crockett requesting an update as to when the requested documents would be received … To date, no further response has been received.” Timeliness in Producing Records G. L. c. 66, § 10(b) provides in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Ianelli made the request to the Department on July 7, 2023, and has not received all the records responsive to her request, I find that the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Department is ordered to provide Attorney Ianelli with a response to the request, provided 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.

Shawn A. Williams, Esq. SPR24/0239 Page 4 February 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kelly Wallace Ianelli, Esq.