Bay State Body Cam v. Boston, City of - Police Department (SPR 20251051)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2025 SPR25/1051 Christine O’Donnell, Esq. Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Bay State Body Cam (requestor) 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 March 31, 2025, the requestor sought the following: [1] Specific records related to the January 13, 2023 arrest of [an identified individual][;] [2] [The] body-worn camera footage from the primary officer involved [from the period of right] before first contact with the [identified individual] and continuing through to the moment the [identified individual] [was] placed into the police vehicle[;] [3] The booking photo of [the identified individual][.] The Department provided a response on April 1, 2025, assigning the request reference number R001683-033125. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR25/1051, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response on April 16, 2025. 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 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

Christine O’Donnell, Esq. SPR25/1051 Page 2 April 18, 2025 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. 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 April 1st Response In its April 1, 2025 response, the Department stated, “[p]lease call Sgt. Det. [identified individual] @ [identified phone number].” Current Appeal In the April 16, 2025 petition to this office, the requestor states, “[a]s of the date of this petition, the Boston Police Department has not issued any substantive written response … The only communication received was a one-line message on April 1, 2025 …” In its April 16, 2025 response, the Department informed the requestor that it was unable to locate any records responsive to the request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. 32 Op. Att’y Gen., 157, 165 (May 18, 1977). 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). Conclusion Given that the Department possesses no records responsive to the request, and this office has no authority to compel the Department create records, I will now consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the

Christine O’Donnell, Esq. SPR25/1051 Page 3 April 18, 2025 Commonwealth of Massachusetts. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Bay State Body Cam