Erivaldo Silveira v. Southbridge Police Department (SPR 20200447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 11, 2020 SPR20/0447 Gerald Arvelo Records Officer Southbridge Police Department 1 Mechanic Street Southbridge, MA 01550 Dear Officer Arvelo: I have received the petition of Erivaldo Silveira appealing the response of the Southbridge Police Department (Department) to request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically on January 3, 2020, Mr. Silveira sought information about a police record(s) concerning his rental property located in Southbridge. Previous appeal This request was the subject of previous appeal. See SPR20/0037 Determination of the Supervisor of Records (February 14, 2020). On March 1, 2020, the Department provided a call log report. Unsatisfied with the Town's responses, Mr. Silveira petitioned this office and this appeal, SPR20/044 7, was opened as a result. 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 portion of the responsive record. 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

Gerald Arvelo SPR20/0447 Page2 March 11, 2020 Current Appeal In his March 1st appeal, Mr. Silveira stated that he has not been supplied with any incident reports and video. In its March 4th response, the Department responded that, "[t]here is neither any video nor any other incident reports that have been filed by the Southbridge Police Department in connection with the incident you referenced on December 12, 2019 ... " Please be advised, under the Public Records Law the Department 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In a conversation between a Public Records Division staff attorney and a Department representative, the Department confirmed that it had no video nor any other incident reports responsive to the request. Conclusion Consequently, where it appears that Mr. Silveira has received responsive records and no additional records exist, I will now consider this administrative appeal closed. If Mr. Silveira is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66 §lO(A)(c). Sincerely, ~.~ Supervisor of Records cc: Erivaldo Silveira