Schnipper, Merritt v. Chicopee, City of - Police Department (SPR 20140265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 30, 2014 SPR14/265 Lieutenant Richard M. Nunes Chicopee Police Department 11 0 Church Street Chicopee, MA 01020-1815 Dear Lieutenant Nunes: I have received a petition from Merritt Schnipper, Esq. appealing the response by the Chicopee Police Department (Department) to his March 29, 2014 request for records. G. L. c. 66, § 1O (b) (authority of Supervisor of Public Records to resolve public records appeals); see also 950 C.M.R. 32.08(6) (appeals process). Specifically, Attorney Schnipper requested a copy of all police reports or other records of investigation from January 1, 2004 through December 31, 2005 concerning six (6) specifically named individuals. The Department provided him with a written response on April30, 2014 citing Exemption (c) ofthe Public Records Law, and Attorney Schnipper appealed that response. Given that the ability to inspect the records of government is fundamental to our democracy, there is a presumption that all governmental records are public records. Disclosure of governmental records is favored by the presumption that the record sought is public. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). See The Harvard Crimson, Inc. v. President & Fellows of Harvard College; Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). In your denial letter, dated 31 days after receipt of the request, you merely recited the language of Exemption (c), but did not specifically explain what records the Department has in its custody that are being withheld, and how Exemption (c) allows the Department to withhold such records. This response is not in compliance with the specificity requirements of the Public Records Law. A record custodian has a duty to comply with a public records request as soon as is practicable, without umeasonable delay, and always within ten (1 0) calendar days. G. L. c. 66, § 10(a); 950 C.M.R. 32.05(2). The ten-day provision is a maximum, rather than a minimum time frame for complying with a public records request. Boston Globe Newspaper Company v. Commissioner ofEducation, 439 Mass. 124 (2003). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Lt. Richard M. Nunes SPR14/265 Page Two June 30, 2014 Within ten (1 0) days of receipt of a public records request, the custodian of records must use his superior knowledge of the records to identify those records that are responsive to the request, conduct a quick search if necessary in order to identify responsive records, and send a detailed, written response. A custodian's response must be either an offer to provide the requested materials or a written denial. A denial must detail the specific legal basis for withholding the requested materials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 577 (1995); see also 950 C.M.R. 32.08(1). In order to withhold a record requested pursuant to the Public Records Law, the record custodian is charged with the duty of proving with specificity how a particular exemption applies to each individual record requested. (emphasis added). See G. L. c. 66, §lO(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian must offer specific proof that the records sought are of a type to which an exemption applies). On May 21, 2014, you explained to an attorney on my staff that the responsive records concern juveniles and are private and restricted. You also stated that Attorney Schnipper has knowledge of the identities of the subjects of the records, as these individuals were identified in his request; therefore, even if the records were not restricted, they could not be redacted in a way to protect the identities of the juveniles. At that time, you were advised that written responses must specifically state the reasons that records are being withheld. In an email, Attorney Schnipper informed this office that the subjects of the records are adults and juveniles, further explaining that the subject matter relates to sexual assault. Attorney Schnipper states that if the records are restricted by statute, the Department should cite that statute and specifically explain why the records are restricted under that statute. G. L. c. 41, § 97D I find the Department has failed to meet its burden under the Public Records Law. Accordingly, the Department is hereby ordered to provide Attorney Schnipper with a detailed, written response to support the denial within ten (1 0) days written in a manner consistent with the Public Records Law and its Access Regulations. This administrativ appeal is closed. Supervisor of Records cc: Mr. Merritt Schnipper, Esq.