Wallack, Todd v. North Andover, Town of - Police Department (SPR 20150307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 12, 2015 SPRlS/307 Lieutenant Charles Gray North Andover Police Department 1475 Osgood Street North Andover, MA 01845 Dear Lieutenant Gray: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the North Andover Police Department (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested copies of "a police report for a motor vehicle crash and arrest" regarding a specifically identified state trooper that occurred on or around March 3, 2014. Mr. Wallack also requested copies of any photographs of the crash scene. The Department provided the report but withheld the photos. In an administrative decision I ordered the Department to provide copies of the photographs or submit a written explanation to meet the burdens of specificity to deny such access. See SPR14/679 Determination of the Supervisor of Records (February 19, 2015). In a letter dated February 27, 2015 the Department sought to fulfill its specificity burden by providing a written explanation supporting its denial of access to the photographs. It should be noted that at least one news sources has published a photograph of the accident scene. See http://www.whdh.com/story/25420471/trooper-accused-of-driving-drunk-released-on-bail (accessed August 11, 2015). 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 in order to withhold a requested record. G. L. c. 66, § 10 ( 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

Lieutenant Charles Gray SPR15/307 Page Two August 12, 2015 Exemption (f) In its February 27 letter the Department states the photographs are to be used in an upcoming trial to be prosecuted by the Essex County District Attorney (DAO), and that neither the Department nor the DAO waives its claim of exemption. Therefore, Exemption (f) merits consideration. It allows withholding of those records that are: 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) As stated above, at least one photograph of this incident has been released to the public and remains on a publicly accessible website. Further, the Department has not met its burden to explain how the release of such photographs would prejudice law enforcement efforts. This office is unaware of any protective order or other information to support nondisclosure at this time. Accordingly, whereas the Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (1 0) days of this order, to provide Mr. Wallack with the requested photographs. A copy of any response to Mr. Wallack by the Department related to this request must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10 00), custodian of records shall provide written good faith estimate). Once the fees are paid, y must provide the responsive records. urs, n Supervisor of Records cc: Mr. Todd Wallack