Shibley, Craig v. Western Massachusetts Law Enforcement Council (SPR 20150467)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 12, 2015 SPRlS/467 Chief Stephen Kozloski Town of Monson- Police Department 11 0 Main Street P.O. Box 273 Monson, MA 01057-0273 Dear Chief Kozloski: I have received the petition of Craig P. Shibley appealing the response of Western Massachusetts Law Enforcement Council (WMLEC) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested copies of WMLEC organizational documents. This request was the subject of a previous appeal. See SPR14/727 Determination of the Supervisor of Records (February 23, 2015). In the February 23 Determination I ordered WMLEC to provide Mr. Shibley with the requested records or provide this office with an explanation of why it is not subject to the Public Records Law. I understand you are now the point of contact for WMLEC. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Chief Stephen Kozloski SPR15/467 Page Two November 12, 2015 Response from WMLEC In an email dated November 3, 2015, you provided a response to Mr. Shibley on behalf ofWMLEC. First, you state that with regard to WMLEC's bylaws and FEIN, "WMLEC has no objection to producing these records for inspection to the extent that they exist and are in our possession." Second, with regard to WMLEC's last annual meeting minutes you state "WMLEC is not in possession of any meeting minutes. Any meeting minutes regarding WMLEC would be in the possession of the Executive Director of the Western Massachusetts Chiefs of Police Association and would appear as part of that organization's minutes." Third, with regard to all federal/state homeland security grants awarded to WMLEC from 2010-2013 you state "[a]ll information concerning WMLEC equipment purchased under state/federal homeland security grants would be in the possession of the fiduciary of the Western Region Homeland Security Council." Fourth, with regard to WMLEC's annual returns, its exemption application and supporting documents, you state "WMLEC has no objection to producing these records for inspection to the extent that they exist and are in our possession." Under the Public Records Law, WMLEC is not required to create any record in response to a public records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). As a result, I will consider the portions of Mr. Shibley's appeal concerning WMLEC's last annual meeting minutes and all federal/state homeland security grants awarded to WMLEC from 2010-2013 closed. However, WMLEC must confirm whether it possesses any records responsive to his request for WMLEC's bylaws, FEIN, its annual returns, its exemption application and supporting documents. It should be noted that Mr. Shibley requested electronic copies of these records so they must be provided in an electronic form if possible. Accordingly, WMLEC is hereby ordered, within ten (1 0) days, to provide Mr. Shibley with any records responsive to his request for WMLEC's bylaws, FEIN, its annual returns, its exemption application and supporting documents that exist and are in its possession. If WMLEC maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Shibley 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.

Chief Stephen Kozloski SPR15/467 Page Three November 12, 2015 cc: Mr. Craig Shibley