David Nathanson v. Boston, City of - Police Department (SPR 20252404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2025 SPR25/2404 Christine O’Donnell, Esq. Assistant Corporation Counsel Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell I have received the petition of Attorney David Nathanson of Jellison & Nathanson, LLP, 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 May 20, 2025, Attorney Nathanson requested, “all reports relating to [a specified] address that name [an identified individual] (in any role) [from] 6/30/2008 to 10/20/2020[.]” In submitting this request, Attorney Nathanson specified that the individual identified in his request, “is [his] client and on whose behalf [Attorney Nathanson is] requesting these records.” The Department provided a response on May 21, 2025, assigning the request reference number B001388-052025. Unsatisfied with the Department’s response, Attorney Nathanson petitioned this office and this appeal, SPR25/2404, 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 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 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. SPR25/2404 Page 2 August 27, 2025 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. The Department’s May 21st Response In its May 21, 2025 response, the Department directed Attorney Nathanson to “send a new email to” a specified Department email address, “[t]o obtain a copy of a police report or accident report[.]” The Department further stated, “[p]lease send a copy of your identification. This is needed in the event you have a special right of access to a record that is not available to the average person. If this identification is not needed it will be discarded.” Public Records Request Format; Identity or Status of the Requestor The Department is advised, “[a] request for public records may be delivered to the [RAO] by hand or via first class mail at the record officer’s business address, or via electronic mail to the address posted by the agency or municipality that the [RAO] serves.” See G. L. c. 66, § 10(a)(iii). Consequently, where Attorney Nathanson submitted his request via the Department’s public records portal, it is unclear why the Department requires that he resubmit his request to a specified Department email address before producing responsive records. Further, please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Given this, the requestor may not be required to identify himself or herself as a condition of obtaining access to the requested records. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (“the statute . . . extends the right to examine public records to ‘any person’ whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity”). Accordingly, neither Attorney Nathanson’s status, nor that of his client, will play any role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. However, it is unclear if Attorney Nathanson may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Attorney Nathanson a greater right of access to the responsive records. Current appeal In his August 14, 2025 appeal petition, Attorney Nathanson states that “[o]n 5/21/2025, I followed up with the BPD via email per their instructions” and indicates that he, “received no

Christine O’Donnell, Esq. SPR25/2404 Page 3 August 27, 2025 response to that email.” Attorney Nathanson additionally notes that “[o]n 7/28/2025, I followed up via the BPD portal since the [May 21, 2025] email produced no response.” He further states that he “also received no response” to his July 28, 2025 correspondence to the Department, as described above, and requests that this office, “order the BPD to respond to [his] request.” 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 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 Nathanson submitted his request on May 20, 2025, it is unclear why the Department has not provided the 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). The Department must provide an estimated date as to when it intends to complete the search and provide the responsive records. Conclusion Accordingly, the Department is ordered to provide Attorney Nathanson with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Attorney Nathanson may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Christine O’Donnell, Esq. SPR25/2404 Page 4 August 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Nathanson, Esq.