James Henry v. Cambridge, City of - Police Department (SPR 20180356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 2, 2018 SPRlS/356 Jeremy Warnick Director of Communications & Media Relations Cambridge Police Department 125 Sixth Street Cambridge, MA 02142 Dear Mr. Warnick: I have received the petition of James Henry appealing the response of the Cambridge 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. Henry requested "[a]ll records related to [an identified witness], including police reports, incident reports, incident logs, calls from service logs, witness interview reports, witness transport records, calls for witness transport logs, and investigative reports in possession of Cambridge Police Department," on certain dates. The Department denied his request, claiming that "there [are] no responsive documents associated with [Mr. Henry's] inquiry located within the Cambridge Police Department." Mr. Henry appealed believing that records exist. 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, § lO(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. 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

Jeremy Warnick SPR18/356 Page2 April 2, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Possession, custody or control of responsive records In its February 5, 2018 response, the Department indicates that "[u]pon review of [Mr. Remy's] request, there were no responsive documents associated with [his] inquiry located within the Cam.bridge Police Department." Under the Public Records Law, the Department is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to com.ply with requests for records 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, § lO(a)(ii). In Mr. Remy's petition, he contests the Department's response. Mr. Herny indicates "[he has] documentary evidence in the form of a 'Watertown Police Department Log' ... that the ... witness in question was transported by Watertown [Police Department] to Cam.bridge to be interviewed as part of the murder of [an identified individual]. Since the murder was clearly in the jurisdiction of [the Department], it beggars belief that [the Department] would not have taken interest in a witness to this serious crime - and therefore produced some kind of record related to this witness." Mr. Herny further states he is "appeal[ing] the adequacy of the search conducted for records related to this witness since it is indisputable that the witness was transported by Watertown [Police Department] into the jurisdiction of [the Department]. It is also beyond dispute that [the Department] should have had a keen interest in if not a legal obligation to record any information that the witness potentially possessed considering the issue of jurisdiction." Based on issues raised in Mr. Herny' s petition for appeal, it is uncertain whether the Department possesses records responsive to the request. As discussed above, the Department has a duty to com.ply with requests for records that are in its possession, custody or control at the time of the request. Id. The Department must confirm. whether or not it possesses responsive records and address the issues raised in Mr. Herny' s appeal. I understand a Public Records Division staff member contacted you about this matter. Order Accordingly, the Department is hereby ordered to provide Mr. Herny 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.m.a.us.

Jeremy Warnick SPR18/356 Page 3 April 2, 2018 Sincerely, ~~ Supervisor of Records cc: James Remy