Craig Higgins v. Lexington, Town of - Police Department (SPR 20201351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2020 SPR20/1351 Captain Michael McLean Lexington Police Department 1575 Massachusetts Avenue Lexington, MA 02420 Dear Captain McLean: I have received the petition of Craig Higgins, Esq. appealing the response of the Lexington 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 July 24, 2020, Attorney Higgins requested “. . . all records as defined by FOIA in your possession or control regarding the incident that occurred on in October of 2015 involving [an identified individual]. (Incident # 384454 & Incident # 384079) This request shall include police reports, witness statements and all other records.” The Department provided a response on July 27, 2020, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). 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, Attorney Higgins’ 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

Captain Michael McLean SPR20/1351 Page 2 August 20, 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 July 27th response In its July 27, 2020 response, the Department asserts “[t]he Report has been denied in accordance with: The Massachusetts Public Records Law, Exemption A & C as [the Department] believe[s] the information clearly relates to: Domestic Violence and Medical Privacy.” Subsequent to the opening of this appeal, I learned that on August 18, 2020, the Department provided Attorney Higgins with a supplemental response which included responsive records pertaining to this request. Conclusion Accordingly, I will now consider this administrative appeal closed. Attorney Higgins may appeal the substantive nature of the Department’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Higgins, Esq.