Khaled M. ElDagany v. Salem, City of - Police Department (SPR 20200148)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records January 31, 2020 SPR20/0148 Capt. Frederick M. Ryan Salem Police Depa.rtment 95 Margin Street Salem, MA 01970 Dear Captain Ryan: I have received the petition of !(haled M. El Dagany appealing the response of the City of Salem (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. El Dagany requested audio records pertaining to calls made to the police department business line. As a result of the response, Mr. El Dagany petitioned this office and this appeal was opened. · Tlte 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 p01iion of the responsive record. Current appeal Subsequent to an intervention by a staff member of the Public Records Division, I learned that the City generated a response to Mr. El Dagany's request on January 16, 2020 that informed him that "we do not have a recording of the two phone calls ... and thus have no records for your request." Fmiher, the City explained that "not all of [their] phone lines are recorded." 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

Captain Frederick M. Ryan SPRl0/0148 Page 2 January 31, 2020 Moreover, in an email communication dated January 30, 2020, the City confirms that they "screened the calls before and after but the calls [you] requested were NOT recorded." Under the Public Records Law, the City is not required to create a list of records or any record in response to a public records request. Under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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, § lO(a)(ii). Accordingly, I will consider this appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Khaled M. El Dagany