William Anderson v. Malden, City of - Police Department (SPR 20201877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1877 Lieutenant Ryan Fortier City of Malden Police Department 800 Eastern Avenue Malden, MA 02148 Dear Lieutenant Fortier: I have received the petition of William Anderson 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, on June 9, 2020 Mr. Anderson requested “…complaints against Malden police and/or individual officers, during the timeframe of 2016 to present (June, 2020).” The Department responded to the request on August 12, 2020, which included responsive records. Unsatisfied with the Department’s response, Mr. Anderson petitioned this office and this appeal, SPR20/1877, 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. 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. 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

Lieutenant Ryan Fortier SPR20/1877 Page 2 October 19, 2020 Current Appeal In his appeal, Mr. Anderson states the “…response did not provide the documents requested. Instead, it provided what appears to be a document requested by another FOIA request (#2020-0154), which I did not make…” Subsequent to the opening of this appeal, the Department provided a response on October 6, 2020, stating “I have updated our response to the requestor’s initial request on FOIA Direct. I have updated the complaint spreadsheet to include all of 2020 complaints…” In an email sent on October 10, 2020, Mr. Anderson indicates “I have received an update from Lt. Fortier following my appeal. In it, I was given an updated spreadsheet, which added in summary information for 2020, which was left out of the initial spreadsheet. While I appreciate the update, it does not provide the documents requested. Nor does it provide a specific exemption, or exemptions, for not fulfilling the FOIA request for the specified documents as required under G.L.c. 66,§10(b)(iv).” Despite the Department’s responses, and in light of Mr. Anderson’s appeal, it is unclear whether the Department has provided all documents responsive to this request. The Department must clarify this matter. Further, this office encourages the parties to communicate to facilitate providing Mr. Anderson with the records he seeks. See G. L. c. 66, § 10(b)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Anderson with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: William Anderson