Terry L. Bobbitt v. Newbury, Town of - Police Department (SPR 20200185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2020 SPR20/0185 Aaron Wojtkowski Detective Sergeant Newbury Police Department 25 High Road Newbury, MA 01951 Dear Detective Sergeant Wojtkowski: I have received the petition of Terry Bobbitt appealing the response of the Newbury Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1 ). Specifically, Terry Bobbitt requested records related to the death of an identified individual. The Department provided certain records. Unsatisfied with this response, Terry Bobbitt appealed. Unique right of access; purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, the requestor's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, the requestor may wish to consider another means of seeking to obtain any existing 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

Aaron Wojtkowski SPR20/0185 Page 2 . February 14, 2020 The 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, § 1O (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. Appeal Based on a review of the file, it appears the requestor sent emails to the Department on December 31, 2019 and January 27, 2020 seeking certain records related to the death of the individual. In the January 2th email the requestor indicates they seek additional records, such as , a written transcript for the 911 call and dispatch communications as well as "photos of the scene." I understand the Department provided the requestor a copy of a responsive 911 call. In the appeal petition Terry Bobbitt indicates "[w]e have sent numerous request[s] for the complete file, including pictures and although we have received some information from medical examiner and the call-out rep01i from police station, and 911 tape, we have yet to receive complete file which includes pictures taken at the scene of the death of [identified individual]." Subsequent to the opening of this appeal, this office was informed that the Department intends to provide a supplemental response to the requestor regarding the issues raised in the appeal. This response must be made in compliance with G. L. c. 66, § 1O (b) ( describing the requirements of a written response to a request for public records). \, Accordingly, I will consider this appeal closed with the understanding that the Department provides said response to Terry Bobbitt in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. 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: Terry Bobbitt