Wallack, Todd v. Methuen, City of - Police Department (SPR 20140677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 18,2015 SPR14/677 Ms. Kerry Regan Jenness, Esq. City Solicitor City of Methuen The Searles Building 41 Pleasant Street Methuen, MA 01844 Dear Attorney Jenness: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the City of Methuen Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a copy of any press releases, incident reports and electronic images, relating to an incident involving a specifically named police officer from another municipality that occurred in August 2014. 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. Your response was dated twenty (20) days after Mr. Wallack's request. The Department is advised to follow the timeliness requirements in the Public Records Access Regulations. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(4 ). "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 of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption when records responsive to a request are being withheld. G. L. c. 66, § lO(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Kerry Regan Jenness, Esq. SPR14/677 Page Two February 18,2015 Exemption (f) The Department denied Mr. Wallack's request, citing Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26) (f). Exemption (f), the so-called investigatory exemption, permits investigatory officials to withhold: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f) The Public Records Law states, "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 the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The Department's response did not contain the specificity required in a denial of access to public records; the denial consisted of a citation of the exemption, further stating that the records relate to an "ongoing investigative matter." 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, whereas the Department has failed to meet this burden of specificity, it is hereby ordered, within ten (10) days of this order, to provide Mr. Wallack with the requested records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Wallack a written explanation, with specificity, how a particular exemption applies to each record. This administrative appeal is now closed. Supervisor of Records cc: Mr. Todd Wallack