Stephen P. Hayes v. Scituate, Town of - Police Department (SPR 20181665)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 26, 2018 SPRlS/1665 Lindsay DeSimone Scituate Police Department 604 Chief Justice Cushing Highway Scituate, MA 02066 Dear Lindsay DeSimone: I have received the petition of Stephen P. Hayes appealing the response of the Scituate 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, in a letter received by the Department on October 29, 2018, Mr. Hayes writes, "[w]as the [identified address] the resident of the informant listed in the Search Warrant Affidavit?" Unsatisfied with the Department's response, Mr. Hayes petitioned this office and SPRl 8/1665 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, § 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. Current Appeal On October 31, 2018, you expressed to Mr. Hayes that, "[t]his information is protected by Exemption( c )-The Privacy Exemption; the law states 'personnel and medical files or information; also other materials relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."' You then informed Mr. 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

Lindsay DeSimone SPR18/1665 Page 2 November 26, 2018 Hayes that, "[a]dditional information may be available through the Hingham District Court." In response, Mr. Hayes sent this office a petition dated November 3, 2018, in which he writes, "I did not speak of an Informant in my request. I asked about a home, a residence, an address [a n identified person] speaks of in his affidavit. The answer on October 31, 2018 is misleading." Specificity in Responding The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are 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). Instead, the Department's response merely cites Exemption ( c) without any further explanation as to the exemption's applicability to the information requested. It is unclear how Exemption (c) applies to allow the Department to withhold the requested information. ,Further, it is unclear whether the Department possesses other records responsive to Mr. Hayes request. Also, please be advised, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen.157, 165 (May 18, 1977). Conclusion In light of the Department's October 31st response and Mr. Hayes's November 3rd petition, the Department is ordered to provide a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations without delay. It is preferable to send an electronic copy of this response to this office at pre@.sec.state.ma. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Stephen P. Hayes