Victor DeSousa v. New Bedford, City of - Police Department (SPR 20200538)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords March 24, 2020 SPR20/0538 Officer Michael Boswell Records Access Officer New Bedford Police Department 871 Rockdale A venue New Bedford, MA 02740 Dear Officer Boswell: I have received the petition of Victor DeSousa, Esq. appealing the response of the New Bedford 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 February 21, 20, Attorney DeSousa requested, "copies of Motor Vehicle Crash Reports from 2/21/20-2/28/20 ... " 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). The Department's February 28th response The Department responded on February 28, 2020 and denied access to responsive records pursuant to the Drivers Privacy Protection Act 18 USC§ 2721 (1997); 18 USC§ 2725(3); G. L. c. 6, §§ 167, 168; 803 C.M.R. 7.10; and HIPPA Privacy Rule 45 C.F.R § 164.502(a)(l). 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

Officer Michael Boswell SPR20/0538 Page 2 March 24, 2020 Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department is advised that 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 and its Access Regulations. The Department's February 281 h response did not contain the specificity required in a denial of access to public records. As a result, I find that the Department did not satisfy its burden in responding to this records request. Order Accordingly, the Department is ordered to provide Attorney DeSousa with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as is 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: Victor DeSousa, Esq.