Cody Shepard v. East Bridgewater Police Department (SPR 20180419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12,201 8 SPR181419 Christopher J. Icenny, Esq. Clifford & Kenny, LLP 3 1 Schoosett Street, Suite 405 Pembroke, MA 02359 Dear Attorney Kenny: I have received the petition of Cody Shepard of The Brockton Enterprise appealing your response on behalf of your client, the Town of East Bridgewater Police Department (Department), to a request for public records. G. L. c. 66, 8 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Shepard requested: 1. The total number of police responses to an identified address between May 1,2004 and December 1,2015 , including the number and types of each call; 2. Any incident reports regarding police responses for hazardous material incidents to the address between May 1,2004 and December l,201 5; 3. Any 9 11 audio recordings made by an identified person or another identified person at the address, between May 1,2004 and December 1,2015; and 4. Any incident and supplemental reports related to a police response to the address on March 10,2013 . Previous appeals - SPR18/067 and SPR18/259 The responsive records were the subject of two previous appeals. See SPRl81067; SPR181259 Determinations of the Supervisor of Records (Supervisor) (January 30,2018 and March 14,2018 ). In my January 30"' determination regarding SPR181067, I found that in claiming Exemption (f) to withhold records in their entirety, the Department had not met its burden of specifically explaining how disclosure would prejudice an investigation, and not providing the records in a redacted format. The Department reassessed its Exemption (f) claim, and provided records in a redacted format on February 12 th. Mr. Shepard's February 2tJth petition to the Supervisor involved the Department's withholding of certain records pursuant to G. L. c. 41, 5 97D, claiming that the records related to domestic violence and are consequently not public. Mr. Shepard sought a response from the 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

Christopher J. Kenny, Esq. Page 2 April 12,201 8 Department detailing how many records and a description of the records the Department is withholding under G. L. c. 41, 5 97D. As a result, in my March determination I ordered the Department to identify what type of record(s) in its possession that it withheld. Current appeal In his March 3othp etition to the Supervisor, Mr. Shepard contends that the Department did not comply with my March 14'~d etermination, by not "identifying how many and what type of records(s)" the Department has in its possession that it is withholding. Consequently, the current appeal was opened. It is my understanding this appeal is limited to the Department's response to Request No. 1. 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). 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 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). The Department's March 29thr esponse The Department's March 29thr esponse indicates with respect to Request No. 1, "[s]pecifically, there are two (2) categories or records which are responsive to your request and are being withheld pursuant to G. L. c. 41, 5 97D. The two (2) categories of records being withheld are dispatch reports and narrative reports." Mr. Shepard's Request No. 1 was for certain records that indicated the number of calls during a specific time period. It is unclear from the Department's March 29thr esponse whether the Department possesses any records that indicate how many calls were made during the specified time period. Consequently, the Department is required to identify whether there are records responsive to the request for the number of calls. -See G . L. c. 66, 5 lO(b)(ii) (written response must "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").

Christopher J. Kenny, Esq. Page 3 April 12,2018 Order Accordingly, the Department is hereby ordered to provide Mr. Shepard with a response, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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: Mr. Cody Shepard Chief Scott Allen