Maryan Amaral v. North Attleboro, Town of - Police Department (SPR 20200601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 10, 2020 SPR20/0601 John Reilly Chief of Police Town of North Attleboro Police Department 102 South Washington Street North Attleboro, MA 02760 Dear Chief Reilly: I have received the petition of Maryan Amaral, Director of Citizens for Access, Inc., appealing the response of the Town of North Attleboro Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 13, 2020, Ms. Amaral requested: 1. [Identified Department] Officer’s badge number; 2. Date [identified] Officer was first appointed or assigned as a [Department] Officer; 3. Copy of any documents of current or past fire-arm licenses issued to [an identified Officer] (last 10 years) including: A. Current MTCP firms instructor certification(s); B. Current NRA firearms instructor certification(s); C. Current SigSauer firearms instructor certification(s); D. Past MTCP, NRA and SigSauer firearms instructor certification(s); E. Copy of most recent certifications in the past 4 years for carrying a firearm including location, date, and signature of those who issued the certificate; F. Copies of any documents of disciplinary measures or awards in relation to [the Identified] Officer’s certification for firearm instruction or carrying a firearm; G. Any firearm instructor certifications for [an Identified Department Sergeant] from 2010 to present; H. Documents of [an identified Officer’s] arrest record, criminal citations, and convictions from January 2017 to December 2019 to include all “impaired” driver’s (DUI’s, driver’s with disabilities, etc.); I. Copy of the automatic license plate reader (ALPR) feeds on the dates from March 20-March 22, 2019; and J. Copy of any licenses or certificates to allow [the Department] to use the ALPR. 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

Chief John Reilly SPR20/0601 Page 2 April 10, 2020 Prior appeal The responsive records were the subject of a prior appeal. See SPR20/0435 Determination of the Supervisor of Records (Supervisor) (March 11, 2020). On February 28, 2020, the Department, through its Legal Counsel Janelle M. Austin of KP Law, P.C., provided a response including a fee estimate for two (2) hours of search and compilation of records conducted by the Chief’s Executive Assistant at $25.00 per hour for a total cost of $50.00. Attorney Austin explained that the Executive Assistant’s hourly rate is $33.50; however, the Department assessed the fee at $25.00 per hour. See G. L. c. 66, § 10(d)(ii). The Department provided information responsive to Ms. Amaral’s Requests 1 and 2. As a result of the fee estimate and the Department’s statement regarding firearm licenses of an identified officer, Ms. Amaral petitioned the Supervisor of Records (Supervisor), and SPR20/0435 was opened. Waiver of fees Ms. Amaral indicates that she seeks a waiver of all fees for this request; an attachment of documents in PDF format to save postage costs; and if there is a charge, provide an estimate in writing and in advance. In Ms. Amaral’s petition she requests this office obtain the records for her without any applicable fees. Ms. Amaral is advised that while a record custodian may waive applicable fees, the Supervisor has no authority to order that a record custodian do so. No responsive records The Department’s February 28th response indicates that after a diligent search it does not have any records responsive to Ms. Amaral’s Requests 3 (A)-3(D) and Request 3 (I). Ms. Amaral is advised, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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, § 10A(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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends

Chief John Reilly SPR20/0601 Page 3 April 10, 2020 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). Current appeal In her February 28th petition to the Supervisor, Ms. Amaral still questioned why the Town would not have in its possession a license to carry a firearm for the identified officer, an instructor of Tactical Dynamics Firearms Training, LLC. Ms. Amaral posits, “[i]t is assumed that a police office is licensed to carry firearms. If [the Department doesn’t] have it because he is unlicensed, this information needs to be presented.” Therefore, in my March 11th determination, I ordered the Department to clarify the issue pertaining to the identified officer’s license to carry a firearm. See SPR20/0435 Determination of the Supervisor (March 11, 2020). Ms. Amaral’s March 25, 2020 email to the Supervisor and the Department On March 25th, after the Supervisor issued the determination, Ms. Amaral contacted this office stating, “[t]he records requested involved [the identified Officer’s] firearm instructor certificates (licenses). We have not received any documents. We requested the badge number of the [Officer]. The response was the number was 10. We would like to see document(s) or verification of this.” Ms. Amaral also explained that she narrowed the request for the Automatic License Plate Reader (ALPR) feed to only the records for March 21, 2019. She contends that she is aware of a particular traffic stop involving the Department’s use of ALPR; therefore, she claims the Department is actively using the technology. Ms. Amaral believes that the facts show the Department is in possession of the ALPR feed records. With regard to the firearm certificates, Ms. Amaral informed this office that she also made a request to the Department of State Police Firearms Department (State Police). She states, “the State Police responded that [the identified Officer] has 4 firearm certificates from 2011 and [an identified Sergeant] has at least one firearm instructor license. We are requesting those documents.” The Department’s March 26th email response to Ms. Amaral’s March 25th requests In Attorney Austin’s March 26th response on behalf of the Department, she informed this office and Ms. Amaral that the Department provided her with records responsive to her Requests 1 and 2 at no charge. In addition, the Department previously informed Ms. Amaral that it does not have any records responsive to Request 3(I), her request for copies of the ALPR feed for March 20, March 21 and March 22, 2019. Attorney Austin also informed Ms. Amaral that after a diligent search, the Department does not have any records responsive to her Requests 3(A) – 3(D).

Chief John Reilly SPR20/0601 Page 4 April 10, 2020 Ms. Amaral is advised the Department’s February 28th response informed her that it has no records responsive to her requests referenced above. In my March 11th determination, I also advised Ms. Amaral that the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Therefore, I find that the Department has met its burden in responding to her Requests 1, 2, 3(I) and 3(A)-3(D). Attorney Austin also writes, “[l]astly, with respect to the statement by Ms. Amaral relative to records involving disabled veteran owners, the Department responded to that request from Ms. Amaral under separate cover…” Fee estimate If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. In my March 11th determination, I requested that the Department explain the tasks that will be undertaken for the 2 hours of time at $25.00 for a total of $50.00. In the Department’s March 26th response, Attorney Austin explained that with regard to the remaining records, including the firearms certification, Request 3(E), the Department is not charging Ms. Amaral for any segregation time. It is my understanding that the Department is only charging Ms. Amaral with search and compilation time to respond to her requests. Attorney Austin explains, “[t]here is no requirement that the Department waive fees associated with this or any request and the estimate is entirely reasonable given the scope of Ms. Amaral’s request seeking records over a several year period. Given its limited resources, particularly at this time of a state of emergency related to COVID-19, the Department cannot waive the search fees associated with this request.” It is my understanding once Ms. Amaral pays the $50.00 fee the Department will conduct the search and compilation and provide Ms. Amaral with the responsive records. Ms. Amaral should be advised that under the Public Records Law, the requestor must pay a fee estimate prior to the records custodian conducting any search, compilation, segregation and redaction of records. See 950 C.M.R. 32.06(2)(f). Ms. Amaral’s March 27, 2020 petition for the current appeal In Ms. Amaral’s March 27th petition for the current appeal, SPR20/0601, she indicates that the Department did not respond within ten days. It is unclear whether the Department provided a response within ten days of receiving the February 13, 2020 request as required by G. L. c. 66, § 10(e); see also 950 C.M.R. 32.06(2)(c). The Department must clarify this issue.

Chief John Reilly SPR20/0601 Page 5 April 10, 2020 Ms. Amaral asks that the Department provide the full badge identifying information of the Officer with Badge Number 10. It is her contention that badge numbers usually include both numbers and letters. The Department must clarify this issue. It is my understanding from Ms. Amaral’s March 27th petition, that she may have narrowed her search request with respect to the criminal arrest record of the identified Officer and the DUI records. Ms. Amaral states that she has received the DUI records for 2018, but not the records for 2017 and 2019. I encourage the parties to continue to communicate to resolve any outstanding requests. As of this date, it is unclear what records the Department will conduct a search and compilation for within the 2 hour period of time the Department described in it fee estimate for $50.00. Conclusion Accordingly, the Department is ordered to provide Ms. Amaral with a response to the request, 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: Maryan Amaral, Citizens for Access, Inc. Janelle M. Austin, KP Law, P.C.