Makalah Lacy v. Boston, City of - Public Records (SPR 20241141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1141 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Makalah Lacy 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 March 19, 2021, Ms. Lacy requested, through her attorney at the time, Arielle Sharma, Esq., “all records related to [a named individual] and incidents originating at [a specified] Boston apartment complex [on five particular dates].” On March 23, 2021, Ms. Lacy further requested “all body camera footage by Boston police officers, 911 calls and BEMS or any other records for [certain] dates regrading incidents” with an identified individual. Previous Appeals This request was the subject of previous appeals. See SPR21/1012 Determination of the Supervisor of Records (May 5, 2021), SPR21/1150 Determination of the Supervisor of Records (May 14, 2021), and SPR21/1527 Determination of the Supervisor of Records (June 29, 2021). In my June 29th determination, I found that the City did not meet its burden to redact the responsive transcripts under Exemption (c) of the Public Records Law. Subsequently, the City responded on April 16, 2024. Unsatisfied with the City’s response, Ms. Lacy appealed, and this case 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 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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. SPR24/1141 Page 2 April 30, 2024 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. Current Appeal In her appeal petition, Ms. Lacy contends the following: The body camera footage provided to me terminates abruptly upon my arrival at the hospital. This abrupt termination raises significant concerns regarding the completeness of the records provided, especially given that significant interactions involving police officers continued beyond this point. Ms. Lacy further contends the following: The response included redacted transcripts and failed to provide the names of the officers involved, which are essential for a full understanding of the incident and for ensuring accountability.... Given that [her] request includes seeking unredacted transcripts from both March 8 and March 3, as well as other detailed information pertaining to the officers involved, the response from the City has not adequately addressed these points. The City’s April 16th Response In its April 16, 2024 response, the City indicates that it does not possess any additional records responsive to the request. Records in Existence; Possession, Custody, or Control 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). Further, 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). However, 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). In its April 16th response, the City explains the following:

Shawn A. Williams, Esq. SPR24/1141 Page 3 April 30, 2024 The Boston Police Department explained that it provided the body-worn camera (BWC) for #21201484, #212015183, #212015570 and #212013764. All of these are uploaded to the Attachments tab for request reference number R000518- 032321 and were made available to [Ms. Lacy]. The Boston Police Department explained that it also provided [her] a CD containing the video. There are no BWC videos from inside the ambulance or in the hospital and as such no such records exist. Based on the City’s April 16th response, where the City has confirmed that it provided all responsive body worn camera footage in its custody, I find that this portion of Ms. Lacy’s appeal is resolved. Burden of Specificity In its April 16th response, the City has not addressed how the transcripts previously provided to Ms. Lacy may be redacted under the Public Records Law. The City is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the City’s April 16th response, it is unclear which exemption the City is citing in order to redact the responsive transcripts. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Ms. Lacy 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. Sincerely, Manza Arthur Supervisor of Records cc: Makalah Lacy