Billiel, Lisa v. University of Massachusetts Amherst - Police Department (SPR 20150100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords April16, 2015 SPRlS/100 Chief John Horvath University of Massachusetts Amherst-Police Department 585 East Pleasant Street Amherst MA 01003-9600 Dear Chief Horvath: I have received the petition of Lisa A. Kidwell appealing the response of the University of Massachusetts Amherst-Police Department to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Officer Kidwell requested copies of audio recorded interviews of three (3) specifically identified individuals related to an internal affairs investigation conducted by the Department, identified as 14-7-IA. In a response dated January 16, 2015 the Department denied Officer Kidwell's request stating the responsive record is exempt from disclosure. In this response the Department failed to claim any exemption to the public records law to justify denial of access to public records. 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). 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 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. Accordingly, 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Chief John Horvath SPR15/100 Page Two April16, 2015 Law enforcement internal affairs investigations have been determined to be public records by the Massachusetts Appeals Court. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003); subsequent review denied by the Supreme Judicial Court. It is also important to note that neither the status of the citizen complainant nor the outcome of the investigation is relevant in determining whether such records are public. See Leeman v. Cote, 21 Mass. L. Rep. 411 (2006). Accordingly, whereas I find the Department has not satisfied its mandatory burden of specificity in denying access to public records, the Department is hereby ordered to provide Officer Kidwell with the responsive 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 Officer Kidwell a written explanation, with specificity, how a particular exemption applies to each record. This administrative appeal is now closed. Supervisor of Records cc: Officer Lisa A. Kidwell