Hilliard, John v. North Attleboro, Town of - Police Department (SPR 20150315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July2,2015 SPRlS/315 Chief John J. Reilly North Attleboro-Police Department 10 2 South Washington Street North Attleboro, MA 02760 Dear Chief Reilly: I have received the petition of John Hilliard appealing the response ofthe North Attleboro -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. Hilliard requested a copy of any correspondence between the Department and the Office of Inspector General (Office) related to a specifically named former state chemist or that chemist's former employer. You denied his request in your April 17 , 2015 response, claiming that the responsive records may be withheld pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(£). 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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); Flatley, 419 Mass. at 511. Further, custodians of records are required to use their superior knowledge of the contents oftheir files to assist in promptly complying with the request. 950 CMR 32.05(4). Exemption (f) Exemption (f), the "investigatory" exemption, permits the withholding of: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www. sec.state.ma. us/ pre

Chief John J. Reilly SPR15/315 Page Two July 2, 2015 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) In the Department's response dated April 17, 2015, you state that "[t]he material you have requested has been furnished to the [Office] pursuant to an ongoing investigation which my department is not participating." Further, you indicate that you must decline Mr. Hilliard's request "because of the pending investigation and the disclosure may prejudice investigation and would not be in the public interest, [G. L. c. 4, §7 (26)(f)]." The Department's response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). As a result, the Department failed to meet its burden of explaining with specificity how the report, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, I find the Department has not satisfied its burden in proving with specificity why responsive records have not been made available by failing to clearly indicate whether the requested records are in its possession. 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. Hilliard 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. Hilliard a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Such a response must confirm whether the requested records exist and are in the Department's possession. If the responsive records are not in the Department's possession, it must clearly indicate such in its response. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Chief John J. Reilly SPR15/315 Page Three July 2, 2015 cc: Mr. John Hilliard