David Nucera v. Everett, City of - Police Department (SPR 20201880)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1880 Chief Steven Mazzie Everett Police Department 45 Elm Street Everett, MA 02149 Dear Chief Mazzie: I have received the petition of David Nucera appealing the response of the Everett 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 September 16, 2020, Mr. Nucera requested records related to photographs of his license, as well as “any and all records that this unnamed Everett Police officer signed in relation to my eviction.” The Department provided a response on September 28, 2020. Unsatisfied with the Department’s response, Mr. Nucera petitioned this office and this appeal, SPR20/1880, 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

Chief Steven Mazzie SPR20/1880 Page 2 October 19, 2020 Current Appeal In an email sent to this Office on September 29, 2020, the Department states “Mr. Nucera has been provided the name of the officer from our agency that evening – for some reason if he has misplaced it, it is Off. James Grenham ID # 9992. He was also provided a response to the other issues he has brought up involving my dept.” In a response to the request dated September 28, 2020, the Department indicates “…in your request, you are seeking ‘photos which he took’ There are reportedly, no photos which he took of you.” The Department further indicates “[y]ou also state that you are seeking records that the Everett Police Officer signed in relation to your eviction. I am also being informed that there is no such record…. to the extent that any of the records you have requested do not exist, the City has no obligation to, and will not, create the same.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). Although the Department does not have a duty to create records, it is unclear from the Department’s responses, and in light of Mr. Nucera’s appeal, whether it possesses any additional responsive records. Further, although the Department states “[t]here are reportedly, no photos which he took of you,” it is unclear if the photos ever existed, or if they existed and were destroyed. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide a response to Mr. Nucera, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: David Nucera