S. Howey v. Attleboro, City of - Police Department (SPR 20180541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2018 SPR18/541 Kyle Heagney Chief of Police City of Attleboro Police Department 12 Union Street Attleboro, MA 02703 Dear Chief Heagney: I have received the petition of S. Howey appealing the response of the City of Attleboro 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, S. Howey requested a copy of records pertaining to an identified address in the City from October 30, 2017 through March 18, 2018, including: • Police reports; fire reports; 911 audio digital/tape calls; log book entries; EMS reports; EMS calls; 911 incident recall sheets; calls for service reports; incident reports; case reports; dispatch logs; reports; investigative reports; photographs; search warrants; text messages from the address; citations; notes; emergency transport records; and 911 tapes/digital files. In response to the request, the Department provided S. Howey with six (6) responsive CAD Incident Reports which had a phone number and name redacted from the reports. S. Howey appealed the response, indicating that the Department did not provide any 911 audio files, and the Department redacted the phone number and names from CAD Incident Report# 17120276. As a result this appeal was opened. 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 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 Kyle Heagney SPR18/541 Page 2 May 4, 2018 order to withhold a requested record. G. L. c. 66, § 1O (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 exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (c ustodian has the burden of establishing the applicability of an exemption). CAD Incident Reports and business line telephone call As a result of a May 2, 2018 telephone conversation with a Public Records Division attorney, the Department attempted to provide S. Howey with the un-redacted CAD Incident Reports via email to the email address on file with this office. However, the Department notified this office that the Department's email failed to be received by S. Howey. On May 3rd, the Department sent the un-redacted CAD Incident Reports for a second time via email to the same email address. Where the Department also provided this office with a copy of the un-redacted CAD incident reports, this office forwarded the reports to S. Howey on May 3rd via email to both email addresses on file with this office. It is my understanding that due to the large size of the file for the business line telephone call, the Department is providing the business line telephone call in a separate email to both S. Howey and this office. Once this office receives the telephone call record, the record will be forwarded by this office to S. Howey to ensure that it is received via email. No duty to create records - 911 call During the May 2nd conversation, a Public Records Division attorney learned that the Department does not have a 911 audio recording. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). 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, § 10( a)(ii). As referenced in this determination, the Department does have a business line telephone call from the identified location, which the Department will provide to S. Howey. In a May 3rd email, the Department has indicated it will provide a copy of this telephone call record in a separate email from the one in which the incident reports were provided to S. Howey and this office via email. Once the copy of the telephone call record is received, this office will forward the record to S. Howey to ensure that it is received by S. Howey. The Department also indicated in its May 2nd conversation with this office, that the Department has no further records responsive to the request.

Chief Kyle Heagney SPR18/541 Page 3 May 4, 2018 Burden of specificity in responding to future public records requests The Department is advised that in responding to public records requests in the future, that the RAO 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 exemption or exemptions upon which the withholding is based ... " See 950 C.M.R. 32.06(3). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. RAOs must meet their burden of demonstrating how redacted information is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, with regard to any future requests where the Department redacts any information from the records or withholds records, it must claim an exemption with specificity. Conclusion Accordingly, where the Department has provided the un-redacted CAD Incident Reports and will provide a business line telephone call to S. Howey and this office, this administrative appeal is closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: S. Howey