Roy Nilson v. Gardner, City of - Law Department (SPR 20170705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2017 SPR17/705 John M. Flick, Esq. City Solicitor City of Gardner Law Department 144 Central Street, Suite 201 Gardner, MA O1 440 Dear Attorney Flick: I have received the petition of Roy Nilson appealing the response of the City of Gardner (City) 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. Nilson requested a copy of the initial incident report of the Gardner Police Department regarding a death on March 30, 2017 at a particular street address in the City. The Department withheld the record pursuant to Exemption (f) of the Public Records Law, and Mr. Nilson appealed. Prior appeal The requested record was the subject of a prior appeal and determination. In its May 3th response, the Department denied the request pursuant to Exemption (f). See SPRl 7/630 Determination of the Supervisor of Records (May 15, 2017). In my determination, I found that the Department did not meet its statutory and regulatory burden of specifically claiming Exemption (f) to withhold the record(s), and I ordered the Department to provide a supplemental response to Mr. Nilson to support its Exemption (f) claim. On May 22nd, you provided another response on behalf of the Department, and Mr. Nilson appealed your May 22nd response. 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 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

John M. Flick, Esq. SPR17/705 Page2 June 7, 2017 order to withhold a requested record. G. L. c. 66, § I O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51'1 (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. Exemption (I) The Department's May 22nd supplemental response continues to deny the request for the initial report as investigatory in nature. Exemption (f), the "investigatory exemption" permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7 (26)(f). In its May 3th response the Department states, "[a ]ny release of records could jeopardize any pending case information the State Police may be working on." In my May 15th determination, I found that the Department did not demonstrate how the requested records are part of an investigation, nor how disclosure of the initial incident report even in a redacted format "will probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (explaining that Exemption (f) "invites case-by-case consideration of whether access would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest."). Your May 22nd letter states that the Department does not have jurisdiction over the investigation of the death of the person identified in the public records request. You explain the Office of the Worcester County District Attorney (District Attorney) and the Office of the Chief Medical Examiner (Medical Examiner) have purview over this investigation. As such, you state that all public records requests regarding the investigation should be directed to the District Attorney or the Medical Examiner. In my May 15th determination, I ordered the Department to demonstrate how the requested records are part of the investigation and how disclosure would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. You state in your May 22nd letter that the Department does not have any information regarding the status of the investigation and has no ability to determine the impact of the disclosure of these records on the investigation of the incident because the Department has no

John M. Flick, Esq. SPR17/705 Page 3 June 7, 2017 involvement in the investigation. The Department has not stated whether it has in its custody the requested initial report drafted by the Department. A Public Records Division attorney telephoned you to inquire whether the Department has any records in its custody regarding the incident and why the initial incident report cannot be provided to Mr. Nilson in a redacted format. It is my understanding that this same attorney was unable to reach you directly, but a detailed voice mail was left for you. I find that the Department has not met its statutory and regulatory burden of explaining whether the Department has any records and whether the record(s) can be provided in redacted format. See Reinstein 378 Mass. at 289-90 (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). Order Accordingly, the Department is ordered to provide Mr. Nilson with a response to request, in a manner consistent with this order, the Public Records Law and its Regulations 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. Mr. Nilson may appeal the substantive nature of the Department's supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1 ). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Roy Nilson