Theodore Lorenz v. Natick, Town of - Police Department (SPR 20170272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 15, 2017 SPR17/272 Lieutenant Leo Fitzpatrick Records Supervisor Natick Police Department 20 East Central Street Natick, MA 01760 Dear Lieutenant Fitzpatrick: I have received the petition of Mr. Theodore Lorenz appealing the response of the Natick Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Lorenz requested "an unsanitized victim report" relating to a specific incident that Mr. Lorenz was involved in on June 8, 2016. In a response dated January 12, 2017, the Department provided a response in which portions of the requested information were withheld under Exemption (c) of the Public Records Law. Mr. Lorenz noted that he seeks the assistance of this office to attain the file in its entirety. This appeal was opened as a result. Purpose of request 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, Mr. Lorenz's purpose in making the request has no bearing on the public status of any existing responsive records. 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). See also 950 C.M.R. 32.08(l)(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"). As 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

LT. Leo Fitzpatrick SPR17/272 Page2 March 15, 2017 such, Mr. Lorenz may wish to consider another means of seeking to obtain any existing responsive records. 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, § lOA(d); 950 C.M.R. 32.03(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(b)(iv), 950 C.M.R. 32.06(3); 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. The Department's response In its response to Mr. Lorenz, the Department explains it is withholding portions of the responsive records under Exemption ( c ). Exemption (c ) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c)

LT. Leo Fitzpatrick SPR17/272 Page 3 March 15, 2017 In the Department's January 12 response, you explain it is the Department's position that "Portions of this record are exempt from public disclosure by statute under Exemption ( c) of the Public Records Law." However, the Department does not provide sufficient detail of how Exemption ( c) applies. If any private, medical or personnel information would be divulged, the Department must specify this as evidence for a valid application of Exemption (c). Based on this response, it is unclear how the responsive records, in their entirety, fall within an exemption claimed by the Department. See Reinstein v. Police Comm'r of Boston, 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). I understand a member of the Public Records Division staff provided you with a copy of the file associated with this appeal. Conclusion The Department is hereby ordered to provide a supplemental response to Mr. Lorenz concerning the sought victim report. I will consider this appeal closed with the proviso that the Department provide Mr. Lorenz with said response to the request within ten (10) business days. 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: Theodore Lorenz