Steven Fitzgerald v. Everett, City of - Police Department (SPR 20180653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2018 SPRlS/653 Captain Paul Hamilton Everett Police Department , 45 Elm Street Everett, MA 02149 Dear Capt. Hamilton: I have received the petition of Steven Fitzgerald appealing the response of the Everett Police Department (Department) to his request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fitzgerald requested all records related to: 1. A June 12, 2007 conversation between Mr. Fitzgerald and Chief Mazzie that took place in the driveway of the Everett Police Department. The conversation concerned the involvement of the Department in the reduction of sentence for a drug dealer (HM) in US District Court in Concord, New Hampshire. 2. The release of Mr. Fitzgerald's personal information by the Everett Police to Harold Mayo Jr. in the summer of 2006. This includes any authorization to release this information, the name and rank of any member(s) who released this information, and any correspondence with federal law enforcement in which Mr. Mayo shared the information. 3. An April 2010 encounter with Officer Edward Cuthbert that took place in Everett Square. Mr. Fitzgerald claims Officer Cuthbert approached him in plainclothes, and said he had spoken to investigators, and wished to "work something out." This request includes the name and rank of any investigator(s) Officer Cuthbert spoke with, and any organization to which they belong. Mr. Fitzgerald also requests "dates and times and interviewing officers of the so-called Investigation." The Department provided Mr. Fitzgerald with a response to Request 1 on April 4, 2018, but failed to respond to Request 2 or Request 3. Unsatisfied, Mr. Fitzgerald petitioned this office, and this appeal was opened as a result. The Department's April 4th response In their response dated April 4, 2018, the Department provided Mr. Fitzgerald with a report dated June 12, 2007, and indicated that this was the only responsive record in their possession. 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

Capt. Paul Hamilton SPR18/653 Page 2 May 10, 2018 I understand a Public Records Division staff member contacted you regarding this matter, and you provided a supplemental response. Use of custodian's superior knowledge The Department provided Mr. Fitzgerald with a supplemental response dated May 9, 2018, confirming that they are in possession of no additional records responsive to Request 1. The Department further indicates that they are in possession of no records responsive to Request 2 or Request 3. In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in his custody to assist the requester in obtaining the desired information. 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, § lO(a)(ii). A records access officer must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, § lO(b)(vii). The Department has confirmed that it is in possession of no additional records responsive to Request 1, Request 2, or Request 3. The Department is not required to create a list of records or any record in response to a public records request. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald