Matta, Ronald v. Brockton, City of - Office of the Mayor (SPR 20140528)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 31,2014 SPR14/528; SPR14/529 Ms. Katherine M. Feodoroff, Esq. Assistant City Solicitor City of Brockton Law Department Brockton City Hall 45 School Street Brockton, MA 023 01 Dear Attorney Feodoroff: I have received the petition of Ronald P. Matta appealing the responses of the City of Brockton Police Department (Department) to his requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in his first request Mr. Matta requested copies of "Internal Affairs reports and/or records division reports pertaining to any criminal investigation concerning" a specifically identified City Building Superintendent for specified periods. In another request Mr. Matta requested a copy of the personnel file for that same Building Superintendent. Whereas these requests are substantially related I have combined my order into this one written determination for both appeals. SPR141528: request for "internal affairs" records In a response dated August 7, 2014 you denied this request, citing the statutory exemption to the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Com. v. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Katherine M. Feodoroff, Esq. SPR14/528; SPR14/529 Page Two October 31,2014 Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). In your response, however, you cited no exemption to operate under Exemption (a). Accordingly, I find the Department has failed to meet its burden of specificity under the Public Records Law. 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). The response by the Department did not contain the specificity required in a denial of access to public records. It is my understanding that an attorney on my staff contacted you with the hopes of obtaining a clarification of the Department's position with respect to this request; however, no written response was provided as of the date of this written determination. I find the Department has failed to meet its burden in complying with the Public Records Law and Regulations by providing specificity with respect to its denial of access to public records. This burden 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 to provide responsive records to Mr. Matta with respect to his request under appeal SPR14/528 in ten (10) days in a manner consistent with the Public Records Law. SPR14/529: Request for "personnel file" records For this appeal Mr. Matta failed to provide my office with a copy of his original request. 950 C.M.R. 32.08(2). In a response dated August 28, 2014 you provided Mr. Matta with "unredacted copies" of records deemed responsive to his request. As I am unable to determine the nature of the request, I decline to opine further upon Mr. Matta's appeal with respect to · personnel records, and accordingly consider this portion of Mr. Matta's administrative appeal closed. Should Mr. Matta wish to appeal to this office he must provide the materials to this office as required in the Public Records Access Regulations. Conclusions Whereas I find the Department has failed to meet its burden of specificity in denying access to public records responsive to Mr. Matta's appeal number SPR14/528 and must provide responsive records, and further whereas I find no evidence to show that the Department's response was incomplete with respect to Mr. Matta's appeal number SPR14/529, I will consider both administrative appeals closed.

Ms. Katherine M. Feodoroff, Esq. SPR14/528; SPR14/529 Page Three October 31,2014 In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideratio filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Ronald P. Matta