Thomas Greve v. Provincetown, Town of- Police Department (SPR 20171613)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 28, 2017 SPR17/1613 Chief Jim Golden Provincetown Police Department 26 Shank.painter Road Provincetown, MA 02657 Dear Chief Golden: I have received the petition of Thomas Greve appealing the response of the Provincetown Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Greve requested "copies of any materials in [the Department's] custody related to genetic testing performed on an unidentified white female (commonly referred to as 'Lady of the Dunes')." A representative of the Department responded to his request identifying a custodian believed to be in possession of 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, § 1O A( 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, § IO(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, § 1O (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

Chief Jim Golden SPRl 7/1613 Page 2 November 28, 2017 Custodian's response to requests for records A records access officer (RAO) has a duty to comply with requests for records, which extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). In response to a request for records, an RAO must explain whether it possesses any responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § 1O (b )(vii). Any denial issued by an RAO must be done in a manner consistent with G. L. c. 66, § IO(a-b) and 950 C.M.R. 32.06(3)(c). Although, the Department provided an initial response, it otherwise did not meet its burden in providing a response to Mr. Greve's request for public records. The Department's response merely states "your information can be secured through the Office of the Chief Medical Examiner in Boston." The Department fails to provide any further explanation as to whether or not it possesses the requested records. The Department must clarify whether or not it possesses responsive records and provide such response in compliance with the Public Records Law and its Regulations. I understand a Public Records Division staff member attempted to contact the Department about this matter, but was unsuccessful. Order Accordingly, the Department is hereby ordered to provide Mr. Greve 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. Mr. Greve may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1 ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Greve