Steven Fitzgerald v. Everett, City of - Police Department (SPR 20181096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records August 3,201 8 SPR1811096 Captain Paul Hamilton Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received the petition of Steven Fitzgerald appealing the response of the Everett Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fitzgerald requested various categories of records concerning an identified individual. 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, 5 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. Current Appeal This request was the subject of a previous appeal. See SPR181917 Determination of the Supervisor of Records (July 5,201 8 ). I closed SPRl8/9 17 by ordering the Department to provide Mr. Fitzgerald a response to his request for records. In a response letter dated July 23, 201 8, the Department expressed to Mr. Fitzgerald that "[tlhere are no responsive records." Unsatisfied with this response, Mr. Fitzgerald petitioned this office and as a result SPRl8/1096 was opened. 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

Captain Paul Hamilton Page 2 August 3,201 8 No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. G. L. c. 66, 5 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 of records at the time of the request. See G. L. c. 66, 5 1O (a)(ii). Conclusion Whereas the Department does not possess records responsive to Mr. Fitzgerald's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald