Steven M. Webster v. Barnstable, Town of - Police Department (SPR 20190222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen>isor ofR ecords February 11, 2019 SPR19/222 Kathleen I. Hinckley Barnstable Police Department 1200 Phinneys Ln Hyannis, MA 02149 Dear Kathleen Hinckley: I have received the petition of Steven M. Webster appealing the response of the Barnstable Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Webster requested various categories of records concerning an identified individual. 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, § IOA(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, § IO(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 In a response dated January 18, 2019, the Department provided Mr. Webster a document responsive to his request and stated it "does not have possession, custody, or control of A, B, C, D, E, and F requested. The Mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the department." Unsatisfied with this response, Mr. Webster petitioned this office and as a result SPR19/222 was opened. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 ~.state.ma.us/pre• pre@sec.state.ma.us

Kathleen I. Hinckley SPR19/222 Page 2 FebruffiY 11, 2019 In an email to this office dated February 11, 2019, the Department writes, "[a]s per our telephone conversation of this morning please be advised that the Barnstable Police Department does not have any further records to respond to this public records inquiry. As stated, we have provided all documentation (narrative of police officer report and DVD of [a n identified individual's] recorded interview) to Mr. Steven Webster. Detective Chevalier informs me that the State Police might have further documentation in this case as I discussed with you this morning." No Duty to Create Records Please be advised, 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). Conclusion Whereas the Department does not possess records responsive to Mr. Webster'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 M. Webster