Silvey, Kimani v. Malden, City of - Police Department (SPR 20150503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 21, 2015 SPRlS/503 Captain Paul Hopkins Administration and Operations City of Malden Police Department 200 Pleasant Street Malden, MA 02148 Dear Captain Hopkins: I have received the petition of Kimani Silvey appealing the response of City of Malden Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on Mr. Silvey requested a copy of an incident report from Friday June 19 involving his vehicle. In a response dated June 22, 2015 the Department denied his request citing to Exemption (a), the statutory exemption to the Public Records Law. The Department provided no further substantive information with regards to the withholding of the responsive 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). 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). 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). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Captain Paul Hopkins SPR15/503 Page Two August 21, 2015 General Chemical Corp. v. Department ofEnvironmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). Unfortunately, the Department's response failed to state the actual statute it believes exempts the requested records from disclosure. 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 each of the withheld records. Accordingly, whereas Department has not overcome the presumption that the requested records are public, the Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Silvey 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. Silvey 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. 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, § 10(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 ust provide the responsive records. cc: Mr. Kimani Silvey