Steven M. Webster v. Barnstable Police Department (SPR 20201216)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2020 SPR20/1216 Detective John Murphy Barnstable Police Department P. O. Box B 367 Main Street Norfolk, MA 02056 Dear Detective Murphy: I have received the petition of Steven Webster appealing the response of the Barnstable Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Webster requested the following: (A) Any and all information dealing with the search and seizure of a social media account (Face Book) that was used against me from the July 11, 2012 indict[]ment. (B) Any and all phone records for the phone # . . . both numbers were essential to some criminal investigation. July 11, 2012. (C) Any and all statements made from codefendent . . . (if any to Barnstable police detectives or D.A. office. (D) All police notes pertaining to investigation. (E) Any and all documents sent to the Barnstable county District attorney’s office held by the Barnstable police department. The Department responded on July 8, 2020, directing Mr. Webster to contact the District Attorney’s Office. Unsatisfied with the Department’s response, Mr. Webster petitioned this office and this appeal, SPR20/1216, was opened as a result. While this appeal was pending, the Department provided a supplemental response on July 31, 2020, indicating it does not possess 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 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

Detective John Murphy SPR20/1216 Page 2 August 4, 2020 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 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 July 8th and July 31st responses In the Department’s July 8, 2020 response, it states “[a]fter speaking with First Assistant District Attorney . . . of the Cape Cod District Attorney’s Office (Office) about your request for evidence, it was relayed to [the Office] that you can acquire what you are seeking from your attorney/public defender. According to [the Office] all of the evidence and records that you seek were already provided to you and your attorney at the time of the court proceedings. If your attorney needs something from this case he doesn’t already have, he can request it from the District Attorney’s office of Michael O’Keefe.” In the Department’s July 31, 2020 response, it indicates that it “. . . does not have possession, custody or control of the responsive records. The mandatory provision of the Public Records Law only applies to information that is in the custody of the Department at the time the request is received. . . . However, the responsive records may be in the possession, custody or control of . . . the Barnstable District Attorney’s Office . . . or the Massachusetts State Police Detective Unit – Cape Cod and the Islands. . .” No Duty to Create Records Please be advised, under the Public Records Law, a records custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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, § 10(a)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). Hence, Mr. Webster may wish to request the records from the Barnstable District Attorney’s Office and/or the Massachusetts State Police Detective Unit – Cape Cod and the Islands as indicated by the Department.

Detective John Murphy SPR20/1216 Page 3 August 4, 2020 Conclusion Whereas the Department does not possess records responsive to Mr. Webster’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Webster