Christopher Nesbitt v. Methuen, City of - Police Department (SPR 20200798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2020 SPR20/798 Captain Gregory Gallant Methuen Police Department 90 Hampshire Street Methuen, MA 01844 Dear Captain Gallant: I have received the petition of Christopher Nesbitt appealing the response of the Methuen 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 30, 2020 Mr. Nesbitt requested: 1. The audio recording of a call placed to your department on 4/29/20 at or around 17:30 hours, about a drone flying over Valley Towing located at [an identified address] in Methuen. 2. Any incident report generated by the responding officers, Detective Morel and Patrolman Mambro, and / or their Supervisor(s). 3. The Methuen Police Department’s Policy(ies) regarding the operation of Unmanned Aircraft Systems (Drones). 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, § l0A(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); 950 C.M.R. 32.06(3); see also Dist. Attorney for theNorfolk 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. 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

Captain Gallant SPR20/0798 Page 2 May 27, 2020 Current Appeal Around May 15, 2020 Mr. Nesbitt received a response from the Department. Unsatisfied by this response, Mr. Nesbitt petitioned this office and as a result SPR20/0798 was opened. In his letter to this office dated May 15, 2020 Mr. Nesbitt writes, “[y]esterday 5/14/20 I sent a follow-up email informing them that the 10 days to respond has expired and I was hoping that they were going to comply with the law and provide me with the records I requested or a written explanation why they wouldn’t. Not long afterwards I received a response from Captain Gallant. He explained to me that all public records request are on hold in the city of Methuen.” In a letter to this office dated May 26, 2020, the Department states, “[d]ue to the COVID- 19 global pandemic, the Governor of the Commonwealth declared a State of Emergency on March 10, 2020 and Methuen Mayor Perry declared a State of Emergency on March 20, 2020. In keeping with the directives of the States of Emergency, Methuen City offices are closed to the public for the time being. It has not yet been determined when offices will reopen.” Subsequent to the intervention by a member of the Public Records Division, I learned that the Department is working on a response. In an email to Mr. Nesbitt dated May 27, 2020 the Department states, “[p]lease be advised, at the direction of the city clerk, your records have been processed and are being reviewed for dissemination per city policy by city solicitor D’Agostino.” Conclusion In light of the Department’s May 27th letter, as well as its communication with this office, this office encourages the Department and Mr. Nesbitt to communicate further to enable the Department to provide the requested public records. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). 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 of records at the time of the request. See G. L. c. 66, § l0(a)(ii). Please note, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). If unresolved issues remain, Mr. Nesbitt may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1).

Captain Gallant SPR20/0798 Page 3 May 27, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Nesbitt Richard J. D’Agostino