Kevin Lopez v. Dighton, Town of -- Police Department (SPR 20190949)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 28, 2019 SPR19/0949 Chief Robert MacDonald Dighton Police Department 1551 Somerset Avenue Dighton, MA 02715 Dear Chief MacDonald: I have received the petition of Mr. Kevin Lopez appealing the response of the Dighton Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Lopez requested "a search warrant used to search [his] iPhone." Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within 10 business days ofreceipt 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. Previous Appeal This request is the subject of a previous appeal. See SPR19/0697 (April 12, 2019). I closed SPRl 9/0697 upon learning that the Department had provided Mr. Lopez with all responsive records. In his May 10, 2019 letter, Mr. Lopez indicated that he had not received the records he had requested. This appeal, SPR19/0949, was opened as a result. 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). 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

Chief Robert MacDonald SPR19/949 Page2 May 28, 2019 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Existence ofr esponsive records 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 Mr. Lopez's May 10th letter, the Department must clarify whether it provided records and also confirm whether additional responsive records exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). Order Accordingly, the Department is ordered to provide Mr. Lopez with a response to the request, provided in a mam1er consistent with this order, the Public Records Law, and its Regulations without delay. 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: Kevin Lopez