Jeffrey L. Baler, Esq. v. Brookline, Town of - Police Department (SPR 20170026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 10, 2017 SPR17/026 Amanda Williams Records Access Officer Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of Jeffrey L. Baler, Esq. appealing the nonresponse of the Brookline Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Baler requested several records related to a specifically identified individual and a specified Norfolk Superior Court case. Having received no response, Attorney Baler petitioned this office. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, § IO(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Purpose of request In his petition, it appears that Attorney Baler is requesting access to the requested records on behalf of a client. Please note that the reason for which a requestor seeks access to or a copy of a public record 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 requestors. Access to a record 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). Accordingly, Attorney Baler's purpose in making the request has no bearing on the public status of any existing responsive records. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Amanda Williams SPR17/026 Page 2 January 10,2017 It should be noted that the 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 while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). In addition, the Supervisor of Records (Supervisor) may deny an appeal ifthe public records in question are the subject of disputes in active litigation, administrative hearings or mediation. 950 C.M.R. 32.08(2)(b). As such, Attorney Baler may wish to consider another means of seeking to obtain any existing responsive records. Order Despite an acknowledgment from this office dated January 5, 2017 providing an appeal number and an email from a member of my staff, to the best of my knowledge, the Department has not responded to Attor~ey Baler's request. The Department is hereby ordered to provide Attorney Baler with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeffrey L. Baler, Esq.