Crystal Beckwith-Ponce v. Gardner, City of- Police Department (SPR 20200677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2020 SPR20/0677 Neil Erickson Chief of Police City of Gardner – Police Department 200 Main Street Gardner, MA 01440 Dear Chief Erikson: I have received the petition of Chrystal Beckwith-Ponce appealing the response of the Gardner 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 April 14, 2020, Ms. Beckwith-Ponce requested a copy of a police report regarding an incident involving her client. On April 14, 2020, the Department provided certain records and denied access to the police report. Unsatisfied with the Department’s response, Ms. Beckwith-Ponce petitioned this office and this appeal, SPR20/0677, 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 circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Beckwith-Ponce’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, § 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). 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 Neil Erikson SPR20/0677 Page 2 May 6, 2020 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); 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, § 10(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 April 14th response In its April 14, 2020 response, the Department states that “[p]er Mass General Law [it is] unable to disseminate domestic violence reports unless a 51A was filed [sic] that specific incident. One was not so [the Department is] unable to disseminate those reports.” The Department’s response did not contain the specificity required in a denial of access to public records. Instead, the Department merely states that “[p]er Mass General Law [it is] unable to disseminate domestic violence reports unless a 51A was filed . . .[,]” without citing an exemption or the specific statute that permits the Department to withhold the responsive record. Please be advised that for Exemption (a) to apply, the Department must cite a statute and 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, I find the Department has not met its burden to withhold the responsive record from disclosure. The Department must identify the statute and explain with specificity, how the statute specifically or by necessary implication permits it to withhold the requested record from disclosure. See G. L. c. 66, § 10(b)(iv) (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). Conclusion Accordingly, the Department is ordered to provide Ms. Beckwith-Ponce 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.

Chief Neil Erikson SPR20/0677 Page 3 May 6, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Chrystal Beckwith-Ponce