Michael Dreslinski v. Holden, Town of - Police Department (SPR 20171117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S Murray Supervisor of Records August 29,20 17 SPR1711117 David A. Armstrong Chief of Police Town of Holden Police Department 1370 Main Street Holden, MA 0 1520 Dear Chief Armstrong: I have received the petition of Michael Dreslinski appealing the response of the Town of Holden Police Department (Department) to a request for public records. G. L, c. 66, 5 1OA; see 950 C.M.R. 32.08(1). Specifically, Mr. Dreslinski requested a copy of: 1. Incident Report No. 07-622-OF, and 2. A public records request activity log for 2016, along with any revised versions that reflect changes to the law which went into effect January 1,2017. Prior appeal The requested records were the subject of a prior appeal. SPR1711002 Determination of the Supervisor of Records (July 25,2017). The appeal was closed with proviso that the Department provide another response to Mr. Dreslinski. The Department provided Mr. Dreslinski with a July 27,2017 response. Mr. Dreslinski informed this office he objects to this response and this appeal (SPR1711117) 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, 5 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, 5 7(26). One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre * pre@sec.state.rna.us

Chief David A. Armstrong Page 2 August 29,20 17 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, 5 lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 11 (1 995) (custodian has the burden of establishing the applicability of an exemption). Current appeal In its July 27thr esponse the Department addresses Mr. Dreslinski's request for the incident report as well as his request for a public records request activity log. Request log The Department asserts that it does not keep a formal records request log. You indicate "I believe a member of my staff may have kept a list as a temporary tracking tool at one time, but it was internal to their files only, was not shared with any other employees, and was not considered a departmental record." You note that "if it even still exists, it would fall under Exemption (e) because notes, etc. such as this 'do not comprise a government file itself.'" You also explained to Mr. Dreslinski that there is no requirement in the new provisions of the Public Records Law that took effect on January 1, 201 7 for a municipality to maintain a log of public record requests. Please note that the requirement to maintain a log of public records requests only applies to agencies. See G. L. c. 66, fj 6A(e) ("Each records access officer of an agency shall document each request for public records submitted to the records access officer." Whereas the Department is part of a municipal entity, and not an agency as defined by the Public Records Law and its Regulations, the Department is not required to create and maintain a log documenting public records requests. In his appeal petition, Mr. Dreslinski refers to a May 3 1,2016 letter from the Department to this office in which the Department mentions keeping a log of certain public records requests. Based on the Department's response, and Mr. Dreslinski's appeal, it is unclear whether the Department possesses a responsive "public records request activity log for 2016." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. G. L. c. 66, 5 1O (a)(ii). The Department must clarify this matter. Incident/investigation report The Department's July 27thr esponse explains that the Department is withholding the incident report and all related records in the case file due to a 2009 Order of Impoundment from the Worcester County Superior Court. The Department is withholding the report pursuant to Exemption (a) as it applies to the Uniform Rules on Impoundment Procedure, Trial Court Rule 13. On August 24,20 17 the Department provided this office with a copy of the protective order for our review. However, it is unclear whether the 2009 protective order is still in effect

Chief David A. Armstrong Page 3 August 29,201 7 given the fact that the order was issued eight years ago. Furthermore, Mr. Dreslinski notes that on May 4, 201 7, the Town's Fire Department provided hirn a redacted copy of the investigation report, 07-622-OF. Therefore, it is unclear why the Department must withhold the same record in its entirety, given its age and the fact that the Fire Department has already provided a redacted copy to Mr. Dreslinski. & Reinstein v. Police Cornrn'r of Boston, 378 Mass. 281,289-90 (1 979) (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, fj 1O (a). A staff member in the Public Records Division provided you with a copy of the appeal file, and a Public Records Division attorney spoke with the Department about this matter. Conclusion Accordingly, whereas the Department will provide another response regarding this matter, I will consider this appeal closed with the proviso that the response be provided to Mr. Dreslinski 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: Michael Dreslinski