Steven Fitzgerald v. Everett, City of - Police Department (SPR 20181160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca.S. Murray Supervisor of Records August 13,2018 SPR1811160 Captain Paul Hamilton Everett Police Department 45 Elm Street Everett, MA 02 149 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 the alleged phone calls of Officer Steve McLaughlin. 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 1O A(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). Previous Appeal This request was the subject of a previous appeal. SPRl811145 Determination of the Supervisor of Records (August 1,201 8). This office closed this case by ordering the Department to provide Mr. Fitzgerald with a response to his request for records, provided in a manner consistent with the order, the Public Records Law and its Regulations without delay. Current Appeal In a response letter dated August 1,2018 the Department expressed to Mr. Fitzgerald that "there are no records responsive." Unsatisfied with this response, Mr. Fitzgerald petitioned this office and as a result SPR1811160 was opened. One Ashburton Place, Room 171 9, Boston, Massachusetts 021 08 (6 17) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Everett Police Department Page 2 August 13,2018 No Duty to Create Records 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, § 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. & G. L. c. 66, § lO(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, u Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald