Arthur G. Grenier v. Dracut, Town of (SPR 20170149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 10, 2017 SPR17/149 Chief Neil F. Ouellette Town of Dracut - Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Chief Ouellette: I have received the petition of Artie Grenier appealing the response of the Town of Dracut-Police Department (Department) to a January 27, 2017 request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Mr. Grenier requested an electronic copy of records from January 1, 2016 to the date of the request, specifically: 1. All current policies, procedures and/or General Orders that relate to the Department's Firearms Licensing Division, 2. The essential duties, functions and/or responsibilities of the Firearms Licensing Officer, 3. All emails, letters and other written communications between Sgt. Jason George and Arthur G. Grenier of Dracut, from or to any of the following email addresses listed: artie70@icloud.com, grenierartie@gmail.com and arthur grenier@comcast.net, 4. All emails, letters and other written communication between Sgt. Jason George and other Department employees and/or other government employees that involve Arthur G. Grenier, and 5. All emails, letters and other written communication between Sgt. Jason George and the Lowell Police Department and/or the City of Lowell that involve Arthur G. Grenier. On January 31, 2017, you provided Mr. Grenier with a response which stated that to your knowledge the records responsive to Requests 1 and 2 do not exist, and you also responded that Requests 4 and Request 5 do not exist. The Department provided Mr. Grenier with a copy of one (1) email responsive to Request 3. Mr. Grenier appealed, seeking clarification from the Department regarding whether a thorough search for the emails responsive to his requests was conducted, and why someone more senior than Sergeant George was tasked with the duty to provide the 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

Chief Neil F. Ouellette SPRl 7/149 Page 2 February 10, 2017 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, § 1O A( d)(l )(iv); 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, § lOA(d)(l(iv); 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). 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2)(b) (a records access officer shall provide written, itemized, good faith estimate). Once fees are paid, a records access officer must provide the responsive records. To assist in requesting and respondil).g 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. No responsive records - Requests 1, 2, 4 and 5 You contacted this office on February 7 and an attorney on my staff provided you with a copy of the appeal file via email. In a February 8 telephone conversation with my staff attorney, you confirmed that the Department has no records responsive to Mr. Grenier's requests 1, 2, 4 and 5. 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. 66, § lO(a)(ii); G. L. c. 4, § 7 (26); There is no obligation to create a record in response to a public records request. G. L. c. 6A( d); see also 32 Op. Att'y Gen. 157, 165 (May 18, 1977). This office was also informed that the reason that Sergeant George was the individual in the Department tasked with the job of searching for and providing the records in response to the public records request is that Sergeant George is the only individual in the Firearms Licensing Division where Mr. Grenier's inquiry originated. In an effort to resolve this appeal, this office has asked the Department to clarify whether the Department has any additional emails responsive to Mr. Grenier's Request Numbers 3 and 4, including any that may have been

Chief Neil F. Ouellette SPRl 7/149 Page 3 February 10, 2017 received by the Department and sent to Mr. Grenier utilizing the three email addresses provided in Mr. Grenier's Request Number 3, and the main email address for the Firearms Licensing Division, Firearms@DracutPolice.com. The Department is advised that all emails provided to Mr. Grenier must contain not only the content of the email, but also the header which normally lists, "From, Sent, To, CC, Subject and Attachments." Mr. Grenier was provided with a copy of an email that the Department cut and pasted into an email response received by Mr. Grenier from the Department regarding Mr. Grenier's Request Number 3. The emails should be provided in their native format with the headers intact along with the content of the email, not copied and pasted into a separate document. Conclusion Accordingly, whereas the Department has promised to .conduct another search for the responsive email records and provide Mr. Grenier with a supplemental response, I will consider this appeal closed with the proviso that the Department provides the response in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. G. L. c. 66, § lOA; 950 C.M.R. 32. 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: Artie Grenier