Anthony F. Buono v. Lexington, Town of - Police Department (SPR 20181538)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 31, 2018 SPRlS/1538 Michael A. McLean Captain of Operations Lexington Police Department 1575 Massachusetts Ave. Lexington, MA 02420 Dear Captain McLean: I have received the petition of Anthony F. Buono, Esq. appealing the response of Town of Lexington Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Buono requested "[t]hat portion of any phone billsre-Beived by the Lexington Police I)epartment thatincludes alist of outgoing-calls- including date and time of such calls - made from the Lexington Police Department on May 10, 2018." The Department responded on July 18, 2018 by providing certain records with portions redacted under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § lO(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. Appeal In its July 18th response the Department provided certain records and refers to Exemption ( c ). You assert that "[t]he disclosure of personal data which may constitute an invasion of 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

Michael A. McLean SPR18/1538 Page2 October 31, 2018 personal privacy. Therefore phone numbers have been redacted as the identification of these numbers are unknown and the release of such numbers could unwillingly be providing the personal phone numbers of victims or witnesses of crimes." In his appeal petition Attorney Buono indicates "[t]he response to this request was incomplete and/or inaccurate. First, the response provided a phone bill with a list of certain outgoing calls. This bill reflects calls relating to only one of the phone numbers utilized by the Lexington Police Department. Upon information and belief, there are other phone bills, for additional phone numbers, with the information requested. Furthermore, the response to this request is incomplete and/or inaccurate based upon independent evidence available to me." Based on his appeal petition, it is unclear whether Attorney Buono also objects to the redactions made under Exemption (c). Subsequent to the opening of the appeal, the Department provided a supplemental response dated October 24, 2018. In this response you reiterate that the Department redacted phone numbers under Exemption ( c ). With respect to the existence of additional responsive records, you indicate "he was given a copy of all of the itemized outgoing phone calls made from the Lexington Police Department on the date in question in the form of a Verizon phone bill." You further explain that "all outgoing phone calls from the Lexington Police Department g0-thr-oughthe [DJepartment' s phone system -and identify as 781-863-9200, which the bill reflects. After discussing the matter with the [D]epartment's phone carrier, Verizon, it was learned that all local calls are not itemized on the bill, only toll calls, which explains the small number of calls on the bill for May 10, 2018." In addition, you note that "Attorney Buono has been given a copy of all itemized outgoing calls made from the Lexington Police Department during the timeframe he requested. The Lexington Police Department does not have in our possession, custody or control any of the additional records requested by Buono." Please note that under the Public Records Law, the Department is not required to create a record in response to a public records request. See 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of the October 24th response that provides additional information regarding the existence of additional responsive records, I will consider this appeal closed. Attorney Buono may appeal the substantive nature of this response within 90 days. See 950 C.M.R. 32.08(1). This office will forward a copy of the October 24th response to Attorney Buono. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Anthony F. Buono, Esq.