Shaffer, Maya v. Salem, City of - Police Department (SPR 20150364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 10, 2015 SPRlS/364 Ms. Sharyn G. Lubas, Esq. Salem Police Department 95 Margin Street Salem, MA 01970 Dear Attorney Lubas: I have received the petition of Maya Shaffer appealing the response ofthe Salem Police Department (Department) to her April2, 2015 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer copies of"records related to the confiscation mentioned by the PINAC article linked above." Ms. Shaffer also requested copies of records "relating to other possible confiscations," including"[c ]hain of custody documents of all confiscated cameras or other recording devices from 2013-present." Failure of requester to provide complete copy of request Ms. Shaffer did not provide a complete copy of the original request to this office. Ms. Shaffer instead copied and pasted a portion of the request into an email. I am therefore unable to determine to what "PINAC article" Ms. Shaffer refers. Ms. Shaffer is advised that to avoid delays a requester must provide a complete copy of the original request for future appeals. 950 C.M.R. 32.08(2) (appeal shall be in writing, and shall include a copy of the letter by which the request was made). Timeliness of response; cure Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (1 0) 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. It appears that you did not receive the April2 request immediately, responding to the request by letter dated May 5, 2015. In an effort to ensure prompt response to future requests, you informed Ms. Shaffer in this letter that records requests to the Department should be sent to the Department's Sergeant who is the Keeper of the Records, OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Sharyn G. Lubas, Esq. SPR15/364 Page Two August 10, 2015 or the Captain overseeing the Department's Records Division. In the letter you provide email addresses for the Sergeant and Captain as well as a link to the Department's web site. As Ms. Shaffer failed to provide the original request I am unable to determine to whom the request was sent. Ms. Shaffer is advised to check a custodian's web site prior to sending requests via email to ensure that such requests are delivered to the correct location and to avoid any delays in response. I find that the Department's efforts in your May 5 letter cured any timelines issues with respect to a response to a public records request. Failure to claim exemption to support redaction; advise right of administrative remedy The Public Records Law states that "there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c). See also Globe Newspaper Co. v. Police Cornrn'r, 419 Mass. 852, 857 (1995) (a government agency that refuses to comply with a request for disclosure has burden of proving the information requested is within one of the enumerated exemptions). In your May 5 letter you provide "a copy of the police report which adequately addresses [Ms. Shaffer's] inquiry." While it appears the Department has no other records related to this portion of the request, this response is unclear. With respect to the second part of Ms. Shaffer's request, you state that the Department finds the request "overly broad," further requesting that Ms. Shaffer contact the Department directly with more information to assist in a response to this portion of the request. Your May 5 response included a police report of the incident that is redacted to remove date of birth, Social Security number and telephone numbers ofthe persons identified; however, you did not cite an exemption nor explain with specificity how that exemption applies to permit such redaction. The response also failed to notify Ms. Shaffer of her right of administrative appeal. The Public Records Access Regulations state that a custodian of records must notify a requester of her administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1 ). The Department redacted the responsive record, a denial of access to the redacted portion of the record, but provided no notice of appeal. Order Accordingly, the Department is hereby ordered to provide a revised response to Ms. Shaffer's request, prepared within ten (1 0) days, in a manner consistent with this order and the Public Records Law. To support any exemption claims with respect to redacted portions of the records the Department must provide a written explanation, with specificity, how a particular exemption applies to each redacted portion of record. To meet the specificity requirement a

Ms. Sharyn G. Lubas, Esq. SPR15/364 Page Three August 10,2015 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. The written response must definitively state whether any other records exist in response to the first portion of Ms. Shaffer's request. The written response must also include a response with respect to the second part of Ms. Shaffer's request for records related to "confiscated cameras or other recording devices from 2013-present." 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. 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 you must provide the responsive records. yours, ervisor of Records cc: Ms. Maya Shaffer