Adam Bagni v. Norton, Town of - Police Department (SPR 20160091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 4, 2016 SPR16/091 Brian M. Clark Chief of Police Town of Norton Police Department 82 East Main Street Norton, MA 02766 Dear Chief Clark: I have received the petition of Adam Bagni of NBC 10, WJ AR TV appealing the response ofthe Town ofNorton Police Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Bagni requested a copy of all 911 calls made in connection with a recent murder that took place on Homes Street in Norton. On February 8, 2016, the Department denied Mr. Bagni's request, claiming that Exemptions (c) and (f) apply to withhold the 911 call in its entirety. Mr. Bagni has appealed this response. The Public Records Access Regulations (Regulations) state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). Your February 4 response failed to notify Mr. Bagni of his administrative remedies. 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). In its February 8 email response, the Department failed to meet its burden of supporting its exemption claims to withhold the 911 call. In a February 25, 2016 telephone conversation an attorney on my staff explained that the Department must provide a more detailed response to Mr. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Chief Brian M. Clark SPR16/091 Page 2 March 4, 2016 Bagni to explain how the Exemptions (c) and (f) allow the Department to withhold the call recording or transcript in its entirety, and why a redacted transcript cannot be provided. You informed this office that the underlying matter has been turned over to the Office of the Bristol County District Attorney and there is still and on-going investigation. You stated that the Department will provide a detailed response. In a March 2, 2016 telephone conversation with Janelle M. Austin of Kopelman & Paige, P.C., the Department's Legal Counsel, an attorney on my staff was informed that Attorney Austin will provide a detailed written response to Mr. Bagni and copy this office. A copy of the appeal file was provided via email to assist with the written response. Accordingly, I will consider this administrative appeal closed, with the proviso that the Department's Legal Counsel, within ten (10) days, provide Mr. Bagni with a detailed response prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must provide a written explanation, with specificity, how a particular exemption applies to each record or each portion of a 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). To assist in responding to requests for public records I refer the Department to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon equest. Please contact my office directly at the telephone number below for further in£ atio . cc: Mr. Adam Bagni Ms. Janelle M. Austin, Esq.