Stanley J. Soltys v. Warren, Town of - Police Department (SPR 20170037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 19, 2017 SPR17/037 Bruce D. Spiewakowski Chief of Police Town of Warren- Police Department 1 Milton 0. Fountain Way P.O. Box 606 Warren, MA 01083 Dear Chief Spiewakowski: I have received the petition of Stanley Soltys appealing the response of the Town of Warren-Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 30, 2016 and December 2, 2016 Mr. Soltys requested a copy of records pertaining to a specific incident. The Department provided certain records but denied the request for the video and other records because of"an open and ongoing criminal case." 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). 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, § lO(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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 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

Chief Bruce D. Spiewakowski SPR17/037 Page 2 January 19, 2017 provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer 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 request. Please contact my office directly at the telephone number provided in this determination for further information. I understand Mr. Soltys asked certain questions to the Department in a letter dated December 16, 2016. It should be noted that record custodians have no obligation to create a record, answer questions or conduct research in response to a public records request. G. L. c. 66, § 10(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). Department responses In a response dated December 9, 2016 the Department denied access to responsive records because "the cruiser video of the incident is evidence in an open and ongoing criminal case, and the defendant has not yet been arraigned on criminal charges." In a December 28, 2016 response the Department explains "[a]t the direction of the District Attorney, we are not releasing any information or discussing the case pre-arraignment." In his appeal petition dated January 5, 2017 Mr. Soltys indicates he has not received a "copy of video cam from the Warren Police Dept. and I would like a copy of District Attorney directive to Chief Bruce Spiewakowski." The Department failed to claim an exemption in the Public Records Law to withhold the records regarding the accident. In order to withhold records under the Public Records Law, the Department must cite an exemption in the Public Records Law and specifically explain how the exemption applies to withhold each individual record. See Flatley, 419 Mass. at 511. I understand an attorney on my staff contacted your office about this appeal. Order Accordingly, the Department is hereby ordered to provide Mr. Soltys with a response to the requests, within ten business (1 0) days, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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.

Chief Bruce D. Spiewakowski SPR17/037 Page 3 January 19, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Stanley J. Soltys