Allison Jarmanning v. Somerville, City of - Police Department (SPR 20181423)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 3, 2018 SPRlS/1423 Deputy Chief Paul Trant City of Somerville Police Department 220 Washington Street Somerville, MA 02143 Dear Deputy Chief Paul Trant: I have received the petition of Allison Jarmanning of WBUR appealing the response of the City of Somerville Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Jarmanning requested an identified police report. The Department denied her request claiming the responsive record "is still under . investigation." 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, § 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, § 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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Deputy Chief Paul Trant SPR18/1423 Page 2 October 3, 2018 Compliance with the requirements ofp roviding a response; specificity In its response, the Department indicates that the report is not available for public release as it is still under investigation. Although the Department provided an initial response to Ms. Jarmanning's request, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify 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, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection ( a) of section 1O A and the right to

Deputy Chief Paul Trant SPR18/1423 Page 3 October 3, 2018 seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § lO(b). Despite the Department's response, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. See id. Specifically, the Department is advised that in responding to public records requests, the RAO must "identify 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 ... " See 950 C.M.R. 32.06(3). Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. RAOs must meet their burden of demonstrating how redacted information is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Therefore, where the Department redacts any information from the records or withholds records, it must claim an exemption with specificity. Order Accordingly, the Department is ordered to provide Ms. Jarmanning with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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, Rebecca S. Murray Supervisor of Records cc: Allison Jarmanning