Blue POV v. Boston, City of - Public Records (SPR 20241035)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 19, 2024 SPR24/1035 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Blue POV 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 February 8, 2024, the requestor sought, “…all bodycam footage for the incident/arrest of [an identified individual], with the arrest date of 6/25/2022 for assault and battery with a dangerous weapon. The incident number for this arrest is 222047013.” The City responded on March 4, 2024. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR24/1035, was opened as a result. Subsequently, the City provided a supplemental response on April 8, 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, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. 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. SPR24/1035 Page 2 April 19, 2024 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 March 4th and April 8th responses In its March 4, 2024 response, the City stated that records were withheld pursuant to Exemption (a) of the Public Records Law. In its April 8, 2024 response, the City stated “I have alerted representatives from the Police department regarding this matter in an effort to resolve any outstanding issues regarding your January 29, 2024 public records request. I will provide an update to you once additional information is provided to me by the department.” Current Appeal In its appeal, the requestor stated, “[t]his is not an arrest of a juvenile and if there is any interactions with a juvenile that portion can be redacted, but not to withhold the entire [record]. To completely withhold footage even of an arrest of a juvenile is not within the law, even arrests can be released with the face(s) of a juveniles redacted.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

Shawn A. Williams, Esq. SPR24/1035 Page 3 April 19, 2024 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Daily logs; public records; confidentiality of certain entries, G. L. c. 41, § 98F G. L. c 41, § 98F states in relevant part: Each police department …shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such person arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: … (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. In its March 4, 2024 response, the City explains: [G. L. c 41, § 98F] … expressly provides that entries on police logs concerning arrests of a person under the age of 18 shall be kept separately, shall not be a public record nor shall such entry be disclosed to the public. … While the record you are seeking is not an entry in the daily police log and does not relate to an arrest of a juvenile, the record you are seeking involves a juvenile; therefore, by necessary implication, this record is not a public record and is exempt. Closed hearings; publication of names, G. L. c. 119, § 38 G. L. c. 199, § 38 states in relevant part: All hearings under sections 1 to 38A, inclusive, except those related to court orders to not resuscitate or to withdraw life-sustaining medical treatment for children in the custody of the department under a care and protection order, shall be closed to the general public. It shall be unlawful to publish the names of persons before the court in any closed hearing. In its March 4, 2024 response, the City explains: The Care and Protection statues in the General Laws govern proceedings involving children and also prohibit information for person sunder the age of 18 from public disclosure. …Because this statute prohibits the publication of names

Shawn A. Williams, Esq. SPR24/1035 Page 4 April 19, 2024 and the closure of most hearing to the public for persons under the age of 18, it is clear that the intent is to protect the identities of this vulnerable population. Similarly, body camera footage of juveniles requires the same protection…. Inspection of Records in youthful offender and delinquency cases, G. L. c. 119, § 60A G. L. c. 119, § 60A states in relevant part: The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. … Juvenile sessions; presence of minors; exclusion of public, G. L. c. 119, § 65 G. L. c. 119, § 65 states in relevant part: Courts shall designate suitable times for the hearing of cases of children under 18 years of age, which shall be called the juvenile session, for which a separate docket and record shall be kept. …The court shall exclude the general public from juvenile sessions admitting only such persons as may have a direct interest in the case, except in cases where the commonwealth has proceeded by indictment. A complaint under section sixty-three may be heard in such juvenile session. In its March 4, 2024 response, the City explains: The language of [G. L. c. 119, § 60A] contemplates that the identity of juveniles be protected from public inspection except in very limited circumstances and that juvenile records should only be available to certain individuals and not the public at large. This is significant because it shows that the identity of the juveniles is not subject to disclosure. [G. L. c. 119, § 65] establishes requirements for juvenile sessions and the presence of minors and requires courts to keep separate dockets and records for such sessions.… This is another example where proceedings and information involving persons under 18 is not open to the public.

Shawn A. Williams, Esq. SPR24/1035 Page 5 April 19, 2024 Based on the City’s response, it is unclear how body camera footage records fall within the type of records contemplated in G. L. c 41, § 98F, G. L. c. 119, § 38, or G. L. c. 119, §§ 60A and 65. As such, I find the City did not meet its burden to show how the statutes, either specifically or by implication, exempt the record from disclosure. Conclusion Accordingly, the City is ordered to provide the requestor 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. The requestor may appeal the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Blue POV