Claudia Leis Bolgen, Esq. v. Malden, City of - Police Department (SPR 20201839)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2020 SPR20/1839 Lieutenant Ryan Fortier City of Malden Police Department 800 Eastern Avenue Malden, MA 02148 Dear Lieutenant Ryan Fortier: I have received the petition of Claudia Leis Bolgen, Esq. of Bolgen & Bolgen appealing the response of the City of Malden Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, in an August 11, 2020 email at 6:10 PM, Attorney Leis Bolgen requested: “…incident reports set forth below my signature. In addition, I would like the following daily call logs from June 22, 2017 through June 26, 2017.” Prior appeal By email on August 27, 2020 at 2:13 PM, the Department provided Attorney Bolgen with the daily call logs. In response, on August 27th at 3:21 PM, Attorney Bolgen inquired about the remaining documents in her August 11, 2020 request for 49 incident reports, and when those records could be provided to her. It is my understanding that on August 27th Attorney Bolgen provided the list of the 49 incident reports she is seeking. On August 31, 2020, Attorney Bolgen petitioned the Supervisor of Records (Supervisor), and the prior appeal, SPR20/1534, was opened. Attorney Bolgen states, “[i]n the past, [the Department] has promptly provided incident reports to me via email request.” See SPR20/1534 Determination of the Supervisor of Records (Supervisor) (September 15, 2020). After the September 15th determination by the Supervisor, the Department provided an additional 4 police reports. However, on September 29, 2020, Attorney Bolgen petitioned the Supervisor regarding 38 Computer-aided (CAD) reports and 3 other police reports. In her petition, Attorney Bolgen states, “I have narrowed the request as much as possible and still obtain the information that I seek. My requests relate to the selected CAD incident reports and 3 police reports within one 24- hour period of time.” In addition, Attorney Bolgen posits that her request, “…amounts to approximately 80-85 pages of electronic records.” As a result, on September 29th, the current appeal, SPR20/1839, was opened. 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

Lt. Ryan Fortier SPR20/1839 Page 2 October 14, 2020 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). Burden of specificity; duty to segregate The Department denied certain incident reports requested without supporting any exemption(s) claimed to withhold the record or portion of the records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. ------------------------------- 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non- exempt, segregable portions of the public records. G. L. c. 66, § 10(a). After this appeal was opened, on October 2, 2020, you contacted this office to explain that you reached out to Attorney Bolgen concerning her requests in an effort to gain further clarity on the request, even providing her with a telephone number to reach you and discuss the requests. However, you indicate that Attorney Bolgen did not further respond. This office encourages the parties to continue to communicate in order to resolve any outstanding issues and to facilitate the production of the records requested by Attorney Bolgen on September 21, 2020. It is my understanding that the Department may need extra time to produce the records requested, and that in her September 29, 2020 petition to the Supervisor, Attorney Bolgen indicates she is cognizant of the Department needing additional time to review, possibly redact and produce the records. Please note that G. L. c. 66, § 10(b)(vi) permits a municipality to “identify a reasonable timeframe in which the…municipality shall produce the public records sought; provided…for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records…..”

Lt. Ryan Fortier SPR20/1839 Page 3 October 14, 2020 Conclusion Accordingly, the Department is ordered to provide Attorney Bolgen with a response to her September 21st request for records, 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: Claudia Leis Bolgen, Esq., Bolgen & Bolgen