Ronald Cheney v. Haverhill, City of - Police Department (SPR 20200630)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 14, 2020 SPR20/0630 Laurie A. Brown Haverhill Police Department 40 Bailey Boulevard Haverhill, MA 01830 Dear Ms. Brown: I have received the petition of Ronald Cheney appealing the response of the Haverhill Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on January 31, 2020, Mr. Cheney requested "[a]ll documents summaries, transcriptions, notes and recordings of (i) the statements of witnesses named ... in the SPCRR or any other witnesses referred to therein and (ii) [i]n the officer report referred as 'all interviews[]' ... that are included or referenced in the following files ... : [ 1] Motor Vehicle Crash Police Report # 18000618 -this concerned a crash occurring on May 6, 2018 at 675 Main Street, Haverhill involving a pedestrian ... and a driver [2] Massachusetts State Police Collision Reconstruction Report Case # 2018-CAR- 000114 (SPCRR) [3] OFFICER REPORT: 18023715 - 1 /POWELL, L (8) -this Report was done subsequent to May 17, 2019 after the reporting officer completed his review of the SPCRR." The Department provided a response on February 5, 2020, which included certain records in redacted form. The records were redacted pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department's response, Mr. Cheney petitioned this office and this appeal, SPR20/0630, was opened as a result. Purpose of request; identity of requestor 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 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

Laurie A. Brown SPR20/0630 Page2 April 14, 2020 circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Cheney's purpose in making the request has no bearing on the public status of any existing responsive records. 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 f01m 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. 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 custodian must provide the responsive records. The Department's February 5111 response In its Febmary 5, 2020 response, the Department indicates that it is enclosing the accident report and incident report with redactions made under Exemptions (a) and (c) of the Public Records Law. In his appeal petition, Mr. Cheney states the following: None of the records produced are the records requested. There are redactions in the two HPD Reports which may or may not have references or quotes from the two witness statements. From the context of these Reports there is no way to determine if the redactions are of material derived from the statements. Regardless, it is the statements themselves that are sought, either in a recorded form or as a transcription of the recorded statements. The statements were not produced in any f01m. The records sought here are statements that describe what two witnesses say they saw of an accident involving a car and a pedestrian. No information is sought about the driver or the pedestrian or the witnesses. All personal information about any of the three actors in this event can be redacted while keeping the substance

Laurie A. Brown SPR20/0630 Page 3 April 14, 2020 of the statements [i]ntact. There is no other basis set forth in the Denial Letter for denying the request for the witnesses' statement. With respect to the witnesses' statements, the Department states "[a]s mentioned in the police report and in your letter, the Massachusetts State Police Collision Analysis and Reconstruction Section (CARS) completed their Collision Reconstruction Report. The MSP clearly states on the front page of their reports 'any disclosure, dissemination or copying of this report by persons not authorized by the Department of the State Police or the District Attorney's Office of jurisdiction is strictly prohibited.' They ask that all requests for reports be forwarded to their attention. I have included the front cover page of the report with the address where you can request a copy of the report directly from them." Based on the Department's response, it is unclear whether it possesses responsive records. Please be advised, 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). As such, I find the Department must clarify whether it possesses records responsive to Mr. Cheney's request. Conclusion Accordingly, the Department is ordered to provide Mr. Cheney 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: Roland Cheney