Barbara Ragan v. Marshfield, Town of - Police Department (SPR 20181480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 19, 2018 SPRlS/1480 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, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Ragan requested records related to an identified investigation and related court case. Previous appeal This request was the subject of a previous appeal. See SPRl 8/1192 Determination of the Supervisor of Records (August 21, 2018). In my August 21st determination I encouraged the Department and Ms. Ragan to communicate further to enable the Department to provide public records; for example, I indicated 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. The Department provided a response on September 20, 2018. Ms. Ragan appealed and SPRl 8/1480 was opened as a result. 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, § 1O (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 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

Lt. Arthur Shaw SPR18/1480 Page2 October 19, 2018 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 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). Based upon a review of the files associated with this appeal, it appears Ms. Ragan is seeking various Department records including notes, logs, and, police reports, and memoranda related to her, animal control officers, and certain 911 calls. In a previous appeal Ms. Ragan references a November 28, 2017 response from the Department that indicates "[t]he items requested do not exist other than notes provided by animal control furnished to me, prosecutor MacKinnon, on this date." In its September 20, 2018 response the Department asserts "[y]ou have received all records from the Marshfield Police Department related to your request. There are no further records available that we are aware of regarding this." In her current appeal petition Ms. Ragan asserts "there appears to be a credible suggestion of the existence of records and logs. These documents are attached to procedural duty and assignments record keeping. Policy and procedures would dictate that any and all service provided by employees of the Marshfield Police Department would be tracked for payroll and retirement benefits purposes." Ms. Ragan also suggests "[u]nder normal regulations these are maintained for a number of years as they directly document an employee's daily activities for standard and overtime payment. The source of this information would be individual notes, log books and digital input, if available in a vehicle or on station site. It is the absence of these notes and logs which is puzzling as they serve as original source documentation to support payroll and pension expenses." Ms. Ragan further notes "I would request that information be provided by the MPD as to why this information is not available. Daily duty logs and records from individual employees, as well as any mobile data login and reporting input are likely available in some form." 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 ofrecords at the time of the request. See G. L. c. 66, § 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, §§ 1, 8, 13, 15. I advise that the Department to review the Records Retention Manual, available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.

Lt. Arthur Shaw SPR18/1480 Page 3 October 19, 2018 In light of the Department's responses and Ms. Ragan's claims, I find it is unclear why additional responsive records have not been provided; specifically, the Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a )(ii), (b )(ii). Conclusion Accordingly, the Department is ordered to provide Ms. Ragan with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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, f1!::!,~ Supervisor of Records cc: Barbara Ragan