Eoin Higgins v. Boston, City of - Public Records (SPR 20242594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2024 SPR24/2594 Shawn A. Williams, Esq. Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Eoin Higgins 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 April 28, 2024, Mr. Higgins requested “[a]ny and all bodycam video taken on the morning and afternoon of April 27 by officers in the Boston Police Department clearing the Northeastern University pro-Palestinian tent encampment.” Prior Appeals This request was the subject of prior appeals. See SPR24/1747 Determination of the Supervisor of Records (June 25, 2024) and SPR24/2057 Determination of the Supervisor of Records (August 1, 2024). In my August 1st Determination, I ordered the Department to provide this office with un-redacted copies of the responsive records for in camera inspection. After the Determination, the Department informed this office on September 5, 2024, that it would provide the records to Mr. Higgins. Since then, Mr. Higgins has not received any responsive records, so he petitioned this office and this appeal, SPR24/2594, 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). It is the burden of the records custodian to demonstrate the application of an exemption in 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 Williams, Esq. SPR24/2594 Page 2 September 27, 2024 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. If there are any fees associated with a response a written, good faith estimate must be provided. See 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 Department’s September 5th response In its September 5, 2024 response, the Department states: The Supervisor of Public Records ordered an in camera inspection of the records in order to determine if the investigatory exemption applies.… The Department explained that the records related to this request are no longer subject to the investigatory exemption and that the Department will no longer be claiming this exemption. The Department explained that there are 76 videos that are over two hours for each video. The Department explained … that it will need to review each video and that it will provide the videos to you on a rolling basis…. The Department stated … that it would reach out to [Mr. Higgins] to see if you would be willing to narrow down the request. Because of the volume of the responsive records, the Department asked if you would be willing to narrow your request in order to complete the request in a more timely manner. However, you stated that you would like all of the responsive records. The Department will provide you with the records, however, the Department needs to review the footage in order to ensure that there are not any statutory exemptions that apply. The Department will provide you with the responsive records on a rolling basis during the week of September 9th. Current appeal In his appeal, Mr. Higgins states, “[d]espite assuring me that ‘The Department will provide you with the responsive records on a rolling basis during the week of September 9th,’ the Boston Police Department has not produced the bodycam video and records they have promised to produce.” Timeliness in providing 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

Shawn Williams, Esq. SPR24/2594 Page 3 September 27, 2024 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 the Department stated it would provide records on a rolling basis beginning the week of September 9th, it is unclear why the Department has not provided any responsive records. 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). Consequently, I find the Department must provide an estimated date as to when it intends to provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Mr. Higgins 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. Mr. Higgins may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Eoin Higgins