Seth Kershner v. Brockton, City of - Police Department (SPR 20170893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 14, 2017 SPR17/893 Lt. William Hallisey Brockton Police Department 7 Commercial Street Brocton, MA 02302 Dear Lt. Hallisey: I have received the petition of Seth Kershner appealing the response of the Brockton 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. Kershner requested seven categories ofrecords related to the Department's Special Reaction Team (SRT). The Department provided certain responsive records on June 22, 2017. Mr. Kershner appealed, indicating he has yet to receive all categories of responsive records. Tlte 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, § 10A(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, § 10(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, § 1 O(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. William Hallisey SPR17/893 Page 2 July 14, 2017 Current appeal In his appeal petition Mr. Kershner explains the Department provided records related to categories 2 and 3, but "furnished no explanation for the failure to supply the remaining five categories of information." Through his appeal, Mr. Kershner asks that the Department release public records dating from January 1, 2012, relating to categories 1, 4-7 of his original request. I find the Department must provide Mr. Kershner a response that addresses categories 1, 4-7 ofhis request. This response must be made in compliance with this order, the Public Records Law, and its Regulations. See G. L. c. 66, § 10(b)(ii)-(v) (a written response must be provided within ten business days that identifies records in the municipality's possession, as well as those it intends to produce and/or withhold under an exemption to the Public Records Law). Please note that a custodian has the burden of establishing the applicability of an exemption. See Flatley, 419 Mass. at 511 (1995). Further, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I understand a Public Records Division staff attorney contacted you and provided your office a copy of the file associated with this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Kershner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Seth Kershner