John DeNicola v. Quincy, City of - Police Department (SPR 20191490)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 8, 2019 SPR19/1490 Lieutenant Terence McDonnell Quincy Police Department 1 Sea Street Quincy, MA 02169 Dear Lt. McDonnell: I have received the petition of John DeNicola appealing the response of the Quincy Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically on June 26, 2019, Mr. DeNicola requested: 1. Any and all phone records made to Mr. DeNicola by Officer Potter on 12/31/18 or after said date; 2. Any and all written, telephonic, or electronic correspondence between officer Potter and Mr. Comerford; 3. Any and all written, telephonic, or electronic correspondence between Police Pro'secutor, Mr. Comerford or Officer Potter; 4. Any and all phone records from 2/26/19, 6/11/19 and 6/12/19 pertaining to incident 18064975; 5. Any and all records of Officer and or Officers who obtained Mr. DeNicola's personal information; 6. Any and all information to which Supervising Officer who approved said charges. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governn1ental records are public records. G. L. c. 66, § WA( 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 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

Lt. Terence McDonnell SPR19/1490 Page 2 August 8, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted pmiion of the responsive record. Previous Appeal This request was the subject of a previous appeal. See SPR19/1377 Determination of the Supervisor of Records (July 25, 2019). In my July 251h determination I found that the Department fmiher responded to Mr. DeNicola on July 24, 2019 and Mr. DeNicola objected to that response. As a result, this appeal was opened. Current Appeal In its July 24th letter the Department writes, "[a]lthough the report for incident# 18064975 makes no mention of Officer Potter claiming to have attempted to contact you 'via phone', please be advised that had she done so utilizing a telephone located within the physical struc::ture of the Quincy Police Station, such a call would have originated from the Depaiiment' s Report Room. Given that calls from that location are not recorded by the Department, there are no responsive records to your request. The same holds true for telephone conversations that may or may not have occurred between/amongst Officer Potter, the Police Prosecutor or Mr. Comerford. Any such telephone conversation would not have been recorded by the Quincy Police Department and therefore, no record exists." The Department fmiher notes, "[a]dditionally, as stated in our initial response, all requests related to those who may have accessed your personal information should be directed to MA Department of Criminal Justice Information Services as they are the custodian of such records. Be advised that if the Quincy Police Department were to seek this same information, a similar process is required on our part." Unsatisfied with this response, Mr. DeNicola states, "I, John DeNicola am filing another appeal on Quincy Police's response to my public records request for phone records, emails, or written records pertaining to the incident #18064975 on 12/31/18. See all attachments. Lt. McDonnell is claiming they have no phone records, emails or written correspondences regarding this incident. The officer who filed the charges in her affidavit claims she attempted to call Mr. DeNicola in regards to this issue whether on a police issued cell phone, personal phone, or landline in the police station there should be a record associated with my phone number. Same holds true for my other phone, written, or electronic correspondence." No Duty to Create Records Please be advised, under the Public Records Law the Depaiiment 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 of records at the time of the request. See G. L. c. 66, § 10(a )(ii).

Lt. Terence McDonnell SPR19/1490 Page 3 August 8, 2019 Conclusion Whereas the Department does not possess records responsive to Mr. DeNicola'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: Lt. Terence McDonnell