BPD firearms discharge reports June 2015 thru December 2016

Shawn Musgrave filed this request with the Boston Police Department of Boston, MA.

It is a clone of this request.

Due Feb. 7, 2017
Est. Completion None
Status
Awaiting Response

Communications

From: Shawn Musgrave

To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10, I hereby request the following records:

-All written reports of firearm discharges completed from June 1, 2015 through December 31, 2016.
-All preliminary and final reports of the Firearms Discharge Investigation Team submitted from June 1, 2015 through December 31, 2016.
-All final dispositions for firearms discharge reports completed from June 1, 2015 through December 31, 2016.

Per the BPD policy of use of force (see https://static1.squarespace.com/static/5086f19ce4b0ad16ff15598d/t/52af5f30e4b0dbce9d22a80d/1387224880253/Rule+303.pdf):

"A full written report of the discharge must then be made prior to the termination of the officer's tour of duty, unless medical reasons dictate that the report be made at a later date.

[....]

Shall submit a preliminary report within five (5) days to the Commander, Homicide Unit, to the Commander of the District or Unit where the officer is assigned and to the Commander of the District or Unit where the discharge occurred, to the Bureau Chief of the appropriate command and to the Superintendent-In-Chief. [....] The Firearm Discharge Investigation Team shall submit a comprehensive, detailed report, with recommendations, within thirty (30) days to the Commander of the Homicide Unit and to the Superintendent-in-Chief. An extension may be granted to the thirty (30) day time frame with the permission of the Superintendent-In-Chief.

[....]

Upon receiving a report pertaining to a firearms discharge and investigation by the Firearm Discharge Investigation Team, the Superintendent-in-Chief may accept it or return the report with a request for further information or clarification."

I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Shawn Musgrave

From: Media Relations

Shawn,

I just spoke with some internal folks on this request and you other most
recent asking for "use of force" reports. It appears as though IA may be
able to compile the reports. It is a rather large task and will likely take
about three weeks. If I can get you a response sooner I will send it along
but both are being worked on. Let me know if this works on your end.

I will keep you posted on progress.

Lt McCarthy

From: Shawn Musgrave

Hi Lt. McCarthy -

Apologies, I responded to your message on my other request before reading this response. Thank you for the further update, and appreciate the time estimate. Please let me know if I can further clarify anything.

Best,
Shawn

From: Media Relations

Shawn,

So we think we may have located reports that might be responsive to this
request. Please attached estimate.
Thanks

Mike M

From: Shawn Musgrave

Hi Lt. McCarthy -

Thank you for your latest communication. I don't believe your office has following protocols established under the revisions to the public records law that went into effect January 2017, particularly regarding timeframe for acknowledging my request and the assessment of fees. As such, by my reading of the statute, your office is unable to charge any fee to fulfill my request.

Under the revised statute (see: https://malegislature.gov/Laws/SessionLaws/Acts/2016/Chapter121 as well as http://www.sec.state.ma.us/pre/prepdf/guide.pdf), subsection (e): "A records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b)."

I submitted my request on January 26, 2017. You acknowledged by email the same day, at which point you indicated that my request was "a rather large task" that would "likely take about three weeks."

While your initial response was timely under subsection (a) of the revised public records law — as it was well within 10 business days — your office failed to meet several provisions within subsection (b), such that your office may not charge any fee pursuant to subsection (e).

Under subsection (b), "If the agency or municipality does not intend to permit inspection or furnish a copy of a requested record, or the magnitude or difficulty of the request [...] unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality is unable to do so within the timeframe established in subsection (a), the agency or municipality shall inform the requestor in writing not later than 10 business days after the initial receipt of the request for public records." While your office acknowledged my request within 10 days, the BPD failed at that time to inform me that it would withhold entire categories of documents. Per your latest correspondence, your office contends that "the preliminary or final reports generated pursuant to Rule 303 of the Department’s Rules and Procedures" are "exempt from disclosure by M.G.L. c. 4 §7(26)(f)." Your office failed to provide such a response within 10 business days as required.

In addition to establishing a timeframe within which your office failed to appropriately respond, subsection (b) clearly enumerates particular required elements for the written response to be provided within 10 business days. Your written response failed to include many of the requisite components.

While your office confirmed receipt of my request (i), your office did not, again "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" (iv). While you now cite particular exemptions — some of which I dispute, but I write now for the purpose of discussing fees — your communication to that effect came far after the 10-day deadline. Again, (iv) is a particularly important element that your office failed to include in a written response within 10 business days given that your office now rejects one of three categories of records in my original request.

Your initial response satisfied portions of (v) in subsection (b), which requires the 10 business day written response to "identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought," although I contend that your response was far from detailed about how my request was burdensome.

Your written response satisfied (vi) of subsection (b), in that you identified "a reasonable timeframe," which I implicitly agreed. However, we are now far beyond your proffered timeframe. Furthermore, I have received nothing to indicate that your office submitted any petition to the Supervisor of Records for a time extension pursuant to subsection (c) of the revised statute. If your office did submit for and/or receive such an extension from the SPR, please provide pertinent documentation to that effect.

While your office did not "suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably" (vii), I don't believe that's relevant here.

Perhaps most importantly, your office did not "include an itemized, good faith estimate of any fees that may be charged to produce the records" (viii) in your written response provided within 10 business days. Rather, two months after the date of my submission, I have now received a hefty estimate of $6,025.00 to partially fulfill my request, given that your office deems certain reports exempt in their entirety.

Lastly, although you have included a statement about my appeal rights to the Supervisor of Records (ix) in your latest communication, your 10 business day written response included no such statement. Neither your response at that time nor your latest response include any statement about my "right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court" (also ix).

In light of the above, please confirm that your office will not charge for the public records requested herein. I am willing to negotiate as to the scope of requested documents, and would like to discuss the issue of exemptions you've asserted. But as a preliminary matter, I believe it's clear from the letter of the statute that your delayed response requires the BPD to fulfill this request at no charge.

Respectfully,
Shawn Musgrave

From: Shawn Musgrave

Hi again, Lt. McCarthy -

I got confirmation today from the Supervisor of Public Records office that your office did not submit any petition for an extension of time.

Please advise.

Respectfully,
Shawn Musgrave

From: Shawn Musgrave

Hello Lt. McCarthy -

Please confirm today whether your department will respond to my recent emails regarding your fee estimate. I will need to submit an appeal to the Supervisor of Records if this is not the case.

Best,
Shawn Musgrave

From: Media Relations

Hi Shawn,

Wanted to give you an update on your records request. Legal is currently
working on a response. I have asked for them to determine what documents
would be responsive and requested we do so at no charge. I will update you
as soon as I hear back. Any questions please don't hesitate to reach out.

Mike

From: Shawn Musgrave

Thanks, Mike.

-Shawn

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