Wayne Napolitano v. Malden, City of (SPR 20201479)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10, 2020 SPR20/1479 Diane M. Anthony Department Power Reviewer Legal Department City of Malden 110 Pleasant Street Malden, MA 02148 Dear Ms. Anthony: I have received the petition of Wayne Napolitano appealing the response of the City of Malden (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 19, 2020, Mr. Napolitano requested “a record of all internal affairs complaints and lawsuits filed against members of the Malden police department from 2010 through 2019.” On August 26, 2020, the Department provided a response which included responsive records. Unsatisfied with the Department’s response, Mr. Napolitano petitioned this office, and appeal SPR20/1479 was opened as a result. 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). 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. 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

Diane M. Anthony SPR20/1479 Page 2 September 10, 2020 Current Appeal In his appeal petition, Mr. Napolitano states “[t]he response is incomplete and does not contain all the requested information.” Mr. Napolitano contends “[t]he city of Malden's response does not include all internal affairs complaints filed during the requested time period and does not include any record of lawsuits filed against the Malden police department and its officers during the requested time period. A complaint I had filed myself against a Malden police officer on 9/12/2019 was not included in the response, also there have been several lawsuits involving the Malden police department during the requested time period that were not included.” Additional Responsive Records 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) (written response must “identify any public records or categories of public records sough that are within the possession, custody, or control of the agency”). Based on Mr. Napolitano’s petition, it is unclear whether the City possesses additional records responsive to his request. I find the City must clarify this matter. Conclusion Accordingly, the City is ordered to provide Mr. Napolitano with a response in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. 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: Wayne Napolitano