Joshua F. Grammel v. Swansea, Town of - Town Clerk (SPR 20180075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 29, 2018 SPR18/075 Arthur D. Frank, Jr., Esq. 209 Bedford Street, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Joshua Grammel, Esq. of the Committee for Public Counsel Services appealing the response of the Town of Swansea Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 20, 2017 Attorney Grammel requested a copy of various categories of records concerning Department procedures, complaints, and investigative history. Status of the requester In a response dated November 28, 2017 the Department asked Attorney Grammel for clarification on his requests for records. The Department also provided responses on December 6, 2017 and January 2, 2018. In your January 211 d response on behalf of the Department you state, "Chief George Arruda has been informed by the District Attorney's Office that you need to avail yourself of the discovery process available to you pursuant to the Massachusetts Rules of Criminal Procedure as this is your unique right of access to the documents requested, see 950 CMR 32.06(i)(g). I must decline your request." The reason for which a requester seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Grammel's purpose in making the request has no bearing on the public status of any existing responsive records. The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not 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

Arthur D. Frank, Jr., Esq. SPR18/075 Page 2 January 29, 2018 preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.") 950 C.M.R. 32.08(1)(a). As such, Attorney Grammel may wish to consider another means of seeking to obtain any existing 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, § 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, § 1O (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. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Staff Attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact this office directly at the telephone number provided in this determination for further information. Department's Responses In its December 6, 2017 and January 2, 2018 responses, the Department did not meet its burden to specifically claim an exemption or exemptions to withhold the requested records. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories ofrecords or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). Furthermore, the Department's December 61 h response informed Attorney Grammel that the Department was charging fees for search and segregation of the records; however, no exemptions were claimed to support those fees.

Arthur D. Frank, Jr., Esq. SPR18/075 Page 3 January 29, 2018 A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(iii); 950 CMR 32.06(4). Compliance with the requirements ofp roviding a response The Department is advised that an RAO's written response must not only be provided within ten business days, but must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories ofrecords or portions of records that the agency or. municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection ( a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1 OA. G. L. C. 66, § lO(b).

Arthur D. Frank, Jr., Esq. SPR18/075 Page 4 January 29, 2018 It is unclear whether the Department complied with all the criteria required by a RAO in providing a response to a public records request. G. L. c. 66, § lO(e); 950 C.M.R 32.06(2)(c). Burden of specificity; duty to segregate The Department denied Attorney Grammel's request without claiming any exemption(s) in the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § IO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). Order It is my understanding that a both a Public Records Division staff member and attorney contacted you regarding this appeal, and that you were provided with a copy of the appeal file. Accordingly, the Department is hereby ordered to provide Attorney Grammel with a response to this request provided 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Joshua F. Grammel, Esq. Susan E. Taveira, RAO