Debbie Spingarn v. Walpole, Town of - Police Department (SPR 20200529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 25, 2020 SPR20/0529 John F. Carmichael, Jr. Chief of Police Walpole Police Department 50 South Street Walpole, MA 02081 Dear Chief Carmichael: I have received the petition of Debbie Spingarn 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 March 2, 2020, Ms. Spingarn requested a copy of a police report "[s]ubmitted at: Mon March 2 13:52:11 2020 from: 69.147.162.232." The Department responded on March 12, 2020, denying access to responsive records pursuant to Exemptions (a) and (t) of the Public Records Law. G. L. c. 4, § 7(26)(a), (t). Unsatisfied with the Department's response, Ms. Spingarn petitioned this office and this appeal, SPR20/0529, was opened as a result. 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, § 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 pmiion 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records One Ashbmion 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 F. Carmichael SPR20/0529 Page 2 March 25, 2020 custodian must provide the responsive records. Purpose of request; identity ofrequestor 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 011'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, Ms. Spingarn's purpose in making the request has no bearing on the public status of any existing responsive records. The Department's March 12th response In its March 12, 2020 response, the Department asserts that the requested records " ... are exempt from public records disclosure by specifically or necessary implication exempted from disclosure by statute, M.G.L. c,4, §7 (26)(a), M.G.L. c,6, § 167 ('criminal offender records information ... shall only be disseminated to criminal justice agencies ... ')" Also, the Depaiiment further asserts that "[t]he information requested consists of investigatory materials of which disclosure would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. See M.G.L. c.4, §7(26)(f)." The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Depaiiment's response merely cites Exemption (a) and the CORI statute, as well as Exemption (f), without any further explanation as to the exemptions' applicability to the responsive records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § 1O (b )(iv) With respect to Exemption (a), please be advised that for this exemption to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Department cites the CORI statute, it remains unclear how the statute specifically or by necessary implication permits it to withhold the police rep01i from disclosure. With respect to Exemption (f), although the Depaiiment indicates that "[t]he information requested consists of investigatory materials of which disclosure would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,] the Department did not demonstrate how the responsive record pertains to an ongoing investigation, nor did it describe how the requested record is part of the investigation. Further, the Department did not provide supporting information to demonstrate how disclosure of the rep01i would compromise its investigative efforts or "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to

Chief John F. Carmichael SPR20/0529 Page 3 March 25, 2020 withhold records under Exemption (f). As a result, I find the Department did not meet its burden of explaining with specificity how the record, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable p01iion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). Conclusion Accordingly, the Depa1iment is ordered to provide Ms. Spingarn with a response to the request, provided in a manner consistent with this order, the Public Records Law and its·. Regulations as soon as practicable. 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: Debbie Spingarn