Michael J. Merriam, Esq. v. Peabody, City of - Police Department (SPR 20160749)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 6, 2016 SPR16/749 Lt. Sheila McDaid Supervisor, Records Division City of Peabody 6 Allen's Lane Peabody, MA 01960 Dear Lt. McDaid: I have received the petition of Michael J. Merriam, Esq., on behalf of his client, appealing the response of City of Peabody-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, on June 22, 2016 Attorney Merriam requested records related to a specific incident and subsequent booking and detention of an individual. Attorney Merriam also requested "any related departmental policies that detail procedures regarding booking and contact with prisoners while detained in cells within the Peabody Police Department." In a response dated July 1, 2016 the Department denied access to responsive records under Exemptions (a) and (b) ofthe Public Records Law. G. L. c. 4, § 7(26)(a), (b). Right ofA ccess Please note that the personal status of Attorney Merriam's client in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Discovery The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Lt. Sheila McDaid SPR16/749 Page2 October 6, 2016 exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for Attorney Merriam to access the responsive records through the judicial process given that un redacted copies of the records could be made available to him. The Public Records Law 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). 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, § lO(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 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). Provision of certain responsive records The Department initially withheld responsive "polices and procedures" under Exemption (b). Subsequent to the opening of this appeal, this office was notified that in an email dated September 28, 2016 the Department provided Attorney Merriam responsive "policies and procedures." Accordingly, I will consider this portion of the appeal closed. Withholding of remaining responsive records In its July 1 letter the Department informed Attorney Merriam that responsive records may be available through other means, including a court order signed by a judge. Nevertheless, the Department denied access to the responsive records under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a). G.L. c. 6, § 176; G. L. c. 4, § 7(26)(a). It is unclear what type records are being withheld Although the Department indicated it is denying access to responsive records, it is unclear what type of responsive records the Department possesses. Therefore, the Department

Lt. Sheila McDaid SPR16/749 Page 3 October 6, 2016 has not met its burden to deny access to the records. See Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption to the responsive records). Accordingly, the Department must clarify what type of responsive records it possesses and explain, with specificity, how an exemption, if any, applies to each portion of the records. See Reinstein v. Police Comm'r ofBoston, 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, § lO(a). Conclusion I understand an attorney on my staff contacted you about this appeal and you indicated the Department would provide a supplemental response to this request. Accordingly, I will consider this appeal closed with the proviso that the City provide Attorney Merriam with a revised response to the request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response illst be provided to this office. It is preferable to send an electronic copy of this respons this ffice at pre@sec.state.ma.us. cc: Mr. Michael J. Merriam Esq.