Steven Fitzgerald v. Everett, City of - Police Department (SPR 20180883)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25,2018 SPR181883 Capt. Paul Hamilton City of Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received a 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 10A; see 950 C.M.R. 32.08(1). On May 30,2018 , Mr. Fitzgerald made a public records request to the Department. Specifically, Mr. Fitzgerald requested information pertaining to a conversation with a member of the Department. On June 13,2018 , the Department provided Mr. Fitzgerald with a response to his public records request referring Mr. Fitzgerald back to previous responses provided to him by the Department on "May 9,2018 , as well as May 29,2018 ." Mr. Fitzgerald appeals the Department's June 13~lr'e sponse to this office. Public Records Law 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 1O (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, fj 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, fj 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. G. L. c. 66, 5 lO(b)(iii). When withholding requested records, a records custodian is required to provide a response that identifies "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." G. L. c. One Ashburton Place, Room 1719 , Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Capt. Paul Hamilton Page 2 June 25,2018 66, fj 10(b)(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, fj 10(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289- 90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). Requests for public records In its response, the Department instructs Mr. Fitzgerald to use "the City of Everett's FOIA portal." It should be noted that the Regulations establish that "a records access officer shall not require a particular form be used by requesters, but may make forms available for requesters." 950 C.M.R. 32.06(1)(d). Accordingly, the Department is advised that while it may encourage requestors to utilize its website, it may not require a requestor to submit a public records request via its online FOIA portal. In responding to Mr. Fitzgerald's June 13" appeal to the Department, 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. See G. L. c. 66, fj 10(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. G. L. c. 66, fj 10(b) (iii). It is unclear if the Department possesses the requested documents Mr. Fitzgerald is seeking concerning a conversation with a member of the Department. Conclusion Accordingly, the Department is ordered to review the requests made by Mr. Fitzgerald and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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, w Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald