Irving F. Rounds Jr. v. Clinton, Town of - Police Department (SPR 20190920)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2019 SPR19/0920 Jeffrey Notaro Records Access Officer Clinton Police Department 176 Chestnut St. Clinton, MA O1 510 Dear Officer Notaro: I have received the petition oflrving Rounds Jr. appealing the response of the Clinton Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Mr. Rounds sent a request to the Department requesting a police report. The Department provided a response to Mr. Rounds on April 27, 2019. In an email on May 7, 2019, Mr. Rounds appealed the Department's response to this office. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a' denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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, § 1O (a)(ii), (b )(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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) (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). 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 Jeffrey Notaro SPR19/0920 Pg.2 May 20, 2019 11 In the Department's April 2i response to Mr. Rounds they state "[w]ith respect to your request, please be advised that this Department does not have possession, custody or control of the records requested." The Department further explained they "did contact the Detective Bureau on your behalf." The Department was informed by the Bureau that there was "no investigation into your claims and there will be no investigation so there are no records to provide to you." In 11 response to the Department's April 2i email, Mr. Rounds explains in his appeal that the Department spoke to one of his attorneys. Mr. Rounds claims that that the Department · "contacted the Burlington MA Police Department as a consequence of my filing a complaint (Police Report) on February 18th, 2019." It is unclear if the Department possesses records responsive to Mr. Rounds' request. See G. L. c. 66, § lO(a)(ii), (b )(ii), (iii). 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 issues raised in Mr. Rounds' appeal regarding the existence of responsive records, and despite the Department's responses, I find it is unclear whether responsive records exist. See G. L. c. 66, § 1O (a)(ii), (b)(ii). Conclusion Accordingly, the Department is ordered to provide Mr. Rounds with a response provided in a manner qmsistent 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, Rebecca S. Murray Supervisor of Records cc: Irving Rounds Jr.