Myers, David v. Malden, City of - Police Department (SPR 20140165)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 19, 2014 SPR14/165 Mr. David Myers MCI Shirley P.O. Box 1218 Shirley, MA 01464-1218 Dear Mr. Myers: I have received your petition appealing the response of the City of Malden (City) Police Department (Department) to your request for records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records related to search warrants submitted by a specifically identified officer of the Department relating to a confidential informant you identified as "Xmas" for a specified time period. In response the Department's Keeper of the Records stated that your request is vague and would require a significant fee for search and segregation, further stating that any responsive records would be withheld pursuant to Exemptions (a), (b), (c), and (f) ofthe Public Records Law. In your appeal you objected to the Department's response to your request. The Department is advised that under the Public Records Law and its Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, § lO(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. If a records custodian intends to withhold responsive records pursuant to an exemption 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). This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. David Myers SPR14/165 March 19, 2014 Page Two On March 18, 2014 the Department confirmed to this office that there are no records responsive to your request. The duty of a custodian of records to comply with requests for infom1ation extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). There is a presumption that all govemment employees perfom1 their duties in an honest and impartial manner. LaPointe v. License Bd. of Worcester, 389 Mass. 454, 459 (1983) see also Konover Mgt. Corp v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (presumption that public officials will perform honestly and impartially). Furthermore, it is the duty of a record custodian to use his superior knowledge of the records to assist a requester in obtaining the records. 950 C.M.R. 32.05(4 ). I accept that the Department understood your requests and responded with the best of their knowledge. Accordingly, whereas there are no records responsive to your request, and further whereas the Department is advised that it must respond to all requests for records in a manner consistent with the Public Records Law and its Regulations, this administrative appeal is now closed. If you are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Shawn A. Williams Supervisor of Records cc: City of Malden-Police Department