Barbara Ragan v. Marshfield, Town of - Police Department (SPR 20181192)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21,2018 SPR18/1192 Lt. Arthur Shaw Marshfield Police Department 1639 Ocean Street Marshfield, MA 02050 Dear Lt. Shaw: I have received the petition of Barbara Ragan appealing the response of the Marshfield 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, Ms. Ragan requested records related to an identified investigation and related court case. Tlze Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 6 governmental records are public records. G. L. c. 66, 10A(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 In her appeal petition Ms. Ragan asserts "[tlhis email will constitute an appeal seeking information relative to evidentiary and discovery documents. Marshfield Police Prosecutor MacKinnon has indicated in writing these items do not exist. Your office has confirmed in writing that no Record Destruction Requests have been filed by the Marshfield Police Department from 20 15 to 20 17." One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 (61 7) 727-2832. Fax: (61 7) 727-5914 a sec.state.ma.us/pre pre@sec.state.ma.us a

Lt. Arthur Shaw Page 2 August 2 1,201 8 Ms. Ragan further indicates "[ilt is evident this failure to timely produce records has been of long duration as the case was first filed in 201 5. There is worry that contemporaneous materials no longer exist, are missing or are at risk of being 'recreated' in response to this instant request." She also provides correspondence and motions related to motions for discovery dated June 26,2017, May 19,2017 and January 24,2017 . Ms. Ragan also notes "[als we are now in 201 8 I respectfully request that this research be extended to any destruction requests for the current year to date." However, it is unclear if Ms. Ragan is seeking records from this office. See G. L.c . 66, 5 1O (a)(i) (requestor must reasonably describe the public record sought). I understand the records at issue were initially sought in the course of discovery in a case filed in District Court. See Commonwealth v. Bennett (Plymouth District Court Docket No. 1659CR000649). It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. Commonwealth v. Wanis, 426 Mass. 639 (1998). Ms. Ragan references a November 28,2017 response from Mr. MacKinnon of the Department that indicates "[tihe items requested do not exist other than notes provided by animal control furnished to me, prosecutor MacKinnon, on this date." 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 lO(a)(ii). However, please note the Department must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, 5 8; G. L. c. 66, 5 13; G. L. c. 66, 5 15. I advise that the Department to review the Records Retention Manual, available online at www.sec.state.ma.us/arc/arcrrnu/rmuidx.htm. This office encourages the Department and Ms. Ragan to communicate further to enable the Department to provide public records. For example, the Department 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, 5 lO(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). If unresolved issues remain, Ms. Ragan may appeal the substantive nature of the Department's response within 90 days. See 950 C.M.R. 32.08(1). Sincerelv. Rebecca S. Murray v Supervisor of Records cc: Barbara Ragan