Steven Fitzgerald v. Everett, City of - Police Department (SPR 20181313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10,2018 SPR18/1313 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 a police report issued on June 12,2007 by an identified individual in addition to "all witness statements and the release of any of these reports" and the individuals to which they were released. Current Appeal In the Department's August 24thr esponse you write, "[tlhere are no more responsive records." Unsatisfied with the Department's response, Mr. Fitzgerald petitioned this office and as a result SPR18113 13 was opened. In Mr. Fitzgerald's petition to this office dated August 27,2018 he states "the response does not include the written witness statement nor an exemption citing why it is being withheld." No Duty to Create Records Please note that 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). 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); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 5 11 (1995) (custodian has the burden of establishing the applicability of an exemption). One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Captain Paul Hamilton Page 2 September 10,2018 Conclusion It is my understanding that you spoke with a staff member of the Public Records Division and confirmed that there are no further records responsive to Mr. Fitzgerald's request. 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