Fitzgerald, Steven v. Quincy, City of - Police Department (SPR 20140024)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords February 11, 2014 SPR14/024 Mr. Paul Keenan Chief of Police 1 Sea Street Quincy, MA 02169 Dear Chief Keenan: I have received the petition of Mr. Steven Fitzgerald appealing the lack of response of the City of Quincy Police Department (Department) to his requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Fitzgerald requested copies certain police and incident reports and any other Department records related to an incident occuring on November 15, 2007. My office has placed at least three (3) telephone calls to your office regarding this issue, all of which have gone unattended and unanswered. "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 town ofthe Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records, and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also In re Subpoena Duces Tecum, 445 Mass. 685, 687 n. 3 (2006). The statutory exemptions are strictly and narrowly construed. Globe Newspaper Co. v. Dist. Att'y for the Middle Dist., 439 Mass. 374, 380 (2003). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Mr. Fitzgerald submitted his request on December 6, 2013 and as of the date of this determination the Department has not responded to this request. The Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Chief Paul Keenan SPR14/024 Page Three . February 11, 2014 The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Accordingly, the Department is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Accordingly, the Department is hereby ordered, within ten days of this order, to provide Mr. Fitzgerald with the requested records, or provide to this office, with specificity, how a particular exemption applies to each record. In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). The Supervisor of Records may require that a custodian compile an index in response to a public records request. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 460 (2007); quoting Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 384 (2002). Said index shall meet the following requirements: (a) the index shall be contained in one document, complete in itself; (b) the index must adequately describe each withheld record or deletion from a released record; (c) the index must state the exemption or exemptions claimed for each withheld record or each deletion of a record; and, (d) the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Nothing in 950 C.M.R. 32.08 shall preclude the Supervisor from employing alternative or supplemental procedures to meet the particular circumstances of each appeal. See 950 C.M.R. 32.08 (7)(a d).

ChiefPaul Keenan SPR14/024 Page Two February 11, 2014 Whereas it is the duty of the records custodian to state with specificity which documents are being withheld, the exact exemptions claimed, and the reasons why the documents are being withheld, the Department is hereby ordered to provide Mr. Fitzgerald with a custodial index of the records. If you have any questions about preparing this index, please do not hesitate to contact this office. If the Department is planning to charge for the cost of complying with his public records request, Mr. Fitzgerald must be provided with a detailed written, good faith estimate on each particular request. Once the Department receives the estimate funds, the records must be provided. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Superior Court by Mr. Fitzgerald. This appeal is now closed. Shawn A. Williams Supervisor of Records cc: Mr. Steven Fitzgerald