Andrew McIsaac v. Quincy, City of - Police Department (SPR 20170440)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2017 SPR17/440 Lieutenant Terence McDonnell Quincy Police Department 1 Sea Street Quincy, MA 02169 Dear Lt. McDonnell: I have received the petition of Andrew Mcisaac appealing the response of the Quincy 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. Mcisaac requested a copy of any "cell monitoring report(s) created on March 15, 2015." In a response dated March 30, 2017, you notified Mr. Mcisaac that the Department had no responsive records as "the data retention period for the cell monitoring system is approximately three (3) months post date." Mr. Mcisaac appealed this response and this appeal, SPR 17/ 440, was opened as a result. 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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the 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

Lt. Terence McDonnell SPRl 7/440 Page 2 April 14, 2017 Records management A review of the materials provided by Mr. Mclsaac raise questions regarding the records management practices of the Town, in particular whether certain records are being retained for the entirety of the relevant retention period. The Department is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The Department is reminded that it must submit an Application for Destruction Permission RMU-2 form, and must receive approval, before certain records may be disposed. For the purpose of this appeal, it is important to note that "cell monitoring reports" must be retained for three (3) years before destruction permission can be granted. Series 16.009 Cell Monitoring Reports, Municipal Records Retention Schedule. Safeguards must be instituted by the Town to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. To assist the Department in meeting its burden, I advise that the Department review the Municipal Records Retention Schedule, available at: www.sec.state.ma.us.arc/arcpdf/Municpal Retention Schedule 20161109pdf. In addition, training workshops on records management are conducted upon request. Please contact the Records Management Unit (RMU) at 617-727-2816 to request assistance. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Conclusion Subsequent to the intervention by a staff member of the Public Records Division, you explained that the Department had been unaware of the retention requirements associated with these records. The requested records had been previously disposed of and the Department would not be able to recover them in any form. While this raises records management concerns, I cannot mandate the creation of records in response to a request. See G. L. c. 66, § 6A(d ); 32 Op. Attorney Gen. 157, 165 (May 18, 1977). You assured this office that all reports will now be maintained for the full retention period, as cited in the Municipal Records Retention Schedule. As no records responsive to this request exist, I will now consider this administrative appeal closed. Sincerely, ~ ~ay ~- Supervisor of Records cc: Andrew Mclsaac