David Perry v. Reading, Town of - Police Department (SPR 20180504)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 30, 2018 SPR18/504 Lieutenant Richard Abate Town of Reading-Police Department 15 Union Street Reading, MA 01867 Dear Lieutenant Abate: I have received the petition of David Perry appealing the response of the Town of Reading 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 December 13, 2017, Mr. Perry requested a copy of "a criminal police report from October of 2016 on an incident involving a felony break and entering." Mr. Perry mentioned that the Department should include copies of photographs taken at the crime scene. The Department provided a response which included portions of the responsive records but indicated that other records have been destroyed. Unsatisfied with the Department's response, Mr. Perry petitioned this office and this appeal, SPR18/504, 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, § 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

Lieutenant Richard Abate SPR18/504 Page2 April 30, 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. Compliance with Records Management In its January 19, 2018 response, the Department indicated that it attached records responsive to Mr. Perry's public records request. However, the Department indicated that "photographs associated with this incident have been destroyed as a result of the case being adjudicated." As such it did not have the photographs in its possession, custody, or control. The basis of Mr. Perry's appeal raises questions regarding the records management of the Department. With respect to the photographs that may have existed at a point in time, if the Department maintains that the responsive records no longer exist, it must explain in writing its justification under the Public Records Law and the Municipal Records Retention Schedule (Schedule) for destroying the records. See G. L. c. 66, § IO(a)(i). Additional responsive records 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 ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). Mr. Perry claims he was not provided with the official copy of the incident report because it does not bear "the actual signatures of all individuals who took part in preparing and/or reviewing the report." Based on Mr. Perry's appeal, it is unclear if the Department possesses additional responsive records, specifically, a signed copy of the incident report. The Department must clarify this matter. Public records requests; petitions to Supervisor ofR ecords While this appeal was pending, this office received further correspondence from Mr. Perry regarding this appeal. In these communications, Mr. Perry indicated that based on the response provided by the Department on April 19t\ he .is now seeking to obtain several categories ofrecords that may be in the Department's possession, custody, or control. Mr. Perry is reminded that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for subsequent records was not made directly to the Department's RAO, I decline to opine on that matter. lfMr. Perry would like to obtain copies of these records, Mr. Perry is advised that he should make a separate public records request to the Department's RAO. Mr. Perry may then appeal the substantive nature of the Department's response within ninety calendar days. See 950 C.M.R. 32.08(1). I understand a Public Records Division staff attorney contacted your office about this appeal.

Lieutenant Richard Abate SPR18/504 Page 3 April 30, 2018 Conclusion Accordingly, the Department is hereby ordered to provide Mr. Perry with a response to the request, explaining its justification under the Public Records Law and the Schedule for destroying the records, 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: David Perry