Tommy Birks v. Holyoke, City of - Police Department (SPR 20190533)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

March 25, 2019 SPR19/533

Officer Caron L. Porter

Records Access Officer

City of Holyoke Police Department 138 Appleton Street

Holyoke, MA 01040

Dear Officer Porter:

I have received the petition of Tommy Birks appealing the February 6, 2019 response of the City of Holyoke Police Department (Department) to a request for public records. G. L.c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Birks requested a copy of: incident reports, supplemental reports, written statements, evidence reports, recorded statements and booking sheet pertaining to 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, § 1OA(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, § 10(b)(iv) (written response 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...”); 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).

If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(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

Officer Caron L. Porter SPR19/533 Page 2 March 25, 2019

On March 22, 2019, this Office received a document from Mr. Birks which he indicated

— is an approved motion from the Hampden Superior Court allowing his motion for waiver of fees ‘for the requested criminal file due to indigency. Please be aware, pursuant to the Public Records Law and related Access Regulations a records access officer may waive or reduce the amount of any assessed fee upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v); 950 C.M.R. 32.07(2)(k)(3).

If Mr. Birks is not satisfied with the response from the Department, he may contact the Hampden Superior Court to seek enforcement of its decision.

Conclusion Accordingly, I will consider this appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records

cc: Tommy Birks

Enclosure