Andrew Quemere v. Walpole Police Department (SPR 20191036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 7, 2019 SPR19/1036 Chief John F. Carmichael, Jr. Walpole Police Department 972 Main Street Walpole, MA 02081 Dear Chief Carmichael: I have received the petition of Andrew Quemere appealing the response of the Walpole Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 14, 2019 Mr. Quemere requested "the list of users blocked on Twitter by Walpole Police Chief John Carmichael." .-.does On May 24, 2019 the Department responded by explaining-that the-Department'': not maintain the records as requested and the Department does not have in its possession, or custody of the records as requested." Unsatisfied with this response, Mr. Quemere appealed to this office and SPRl 9/1039 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). 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, § 1O (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

Chief John Carmichael, Jr. SPR19/1036 Page 2 June 7, 2019 Appeal In its May 24th response the Department claims "[t]he mandatory disclosure provision of the Public Records Law only applies to information that is in the 'custody of the Department at the time the request is received.' As a result, there is no obligation for a Department to 'create a record' for a requestor that does not already exist. See G.L. c. 4, section 7(26)" (emphasis in original). Further, the Department states that it is" ... unable to respond to your request, since the [Department] does not maintain a specific list and the Department is not obligated to generate a list or a document which does not already exist." In his appeal petition, Mr. Quemere claims that "[a]ll twitter accounts have a block list," and since "Police Chief John Carmichael has a twitter account ... he has a list of blocked users." 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, § 1 O(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). ·· ············· ·· ·· ·· ·· ·· Tlie aefin1IT0nofapu0Iic iecora is-bioacIIydefiiieafo include a1raocumeii1:ary materials ·· · ·· · ·· · ·· ·· ·· ·· ···~··· or data, regardless of physical form or characteristics, made or received by any officer or employee of an agency or municipality. See G. L. c. 4, § 7(26). It appears the Police Chief uses the Twitter account at issue in his official capacity as Chief. As a result, it is unclear how the requested "list of users blocked on Twitter by Walpole Police Chief John Carmichael" is not made or received by a municipal employee, therefore being within the Department's possession, custody, or control and falling under the statutory definition of a public record. The Department must clarify this matter. Conclusion Accordingly, Department is ordered to provide Mr. Quemere with a response to the request, provided in a manner consistent 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: Andrew Quemere