Pessolano, Esq., Joseph v. Swansea, Town of - Police Department (SPR 20140267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords May 13,2014 SPR14/267 Mr. Authur D. Frank, Jr., Esq. 209 Bedford St, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Attorney Joseph P. Pessolano appealing the response of the Town of Swansea Police Department (Department) to the requests of his client, Ars Techina for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Pessolano's client requested copies of records regarding computer malware that hit the Department's computer system in November of2013. In your response you denied providing certain records citing Exemption (b) and (f) of the Public Records Law. 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. 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, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for theNo rfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Your response did not contain the specificity required in a denial of access to public records. Accordingly, you are 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. The Department failed to inform Attorney Pessolano of his right to file an appeal with the Supervisor of Records. A custodian of records has a duty to inform a requester in the custodian's written response, that the requester has a right to file an appeal with the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Authur D. Frank, Jr. Esq. SPR14/267 May 13,2014 Page Two Supervisor of Records should he or she be denied access to records. See 950 C.M.R. 32.08(1) (The custodian shall advise the person denied access of his or her remedies under 950 C.M.R. 32.00 and G. L. c. 66,§ lO(b)); see also 950 C.M.R. 32.08(2). The Department has yet to meet its burden in proving with specificity why certain requested records have not been made available. The Department is hereby ordered, within ten (1 0) days to provide Attorney Pessolano with the requested records, or provide to Attorney Pessolano and this office, with specificity, how a particular exemption applies to each record. If the Department is planning to charge for the cost of complying with this public records request Attorney Pessolano must be provided with a detailed written, good faith estimate on each particular request prepared in a manner consistent with the Public Records Law and its Regulations. See G. L. c. 66, § 10; see also 950 C.M.R. 32.00. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Superior Court by Attorney Pessolano. Shawn A. Williams Supervisor of Records cc: Mr. Joseph P. Pessolano, Esq. Chief George Arruda