Steven Fitzgerald v. Everett, City of - Police Department (SPR 20180726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 30,2018 SPR181726 Capt. Paul Hamilton City of Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received the petition from Steven Fitzgerald appealing the response from the City of Everett's Police Department (Department) to a request for public records. G. L. c. 66, 5 1OA; see also 950 C.M.R. 32.08(1). Mr. Fitzgerald made a public records request on May 15,2018 to -- the Department requesting documents pertaining to a Facebook threat towards Mr. Fitzgerald. Mr. Fitzgerald also requested any communication from the Department and the Mayor of Everett's Office regarding the topic of his request. In the Department's response on May 17, 201 8, the Department asked Mr. Fitzgerald clarify the exact records he was requesting. Mr. Fitzgerald appealed to this office via email on May 17,2018 asserting the Department's response does not provide the requested records nor does it cite an exemption for withholding the requested records. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, 5 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, 5 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 of records at the time of the request. G. L. c. 66, tj lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, 5 10(b) (iii). 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 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 Pg* 2 May 30,2018 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, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). I find the Department did not initially explain which responsive records it has within its possession. See G. L. c. 66, 5 lO(a)(ii), (b)(ii) (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 of records at the time of the request). The Department is advised it must identify the withheld information, cite an exemption as the basis of the withholding and explain why the exemption applies. See G. L. c. 66, 5 lO(b)(iv). The Department may ask Mr. Fitzgerald for a more refined search in order to best provide Mr. Fitzgerald with the records he is requesting. See G. L. c. 66, 5 1O (b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). This office encourages both parties to communicate further to enable the Department to provide the requested records. I understand the Department provided a response to Mr. Fitzgerald on May 29,20 18 that provided certain responsive records, but withheld others under Exemption (f). Mr. Fitzgerald appealed this response on May 30,201 8. A new appeal (SPR181781) was opened to analyze the Department's May 29'" response. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Steven Fitzgerald