David Zuares v. Executive Office of Public Safety and Security - State 911 Department (SPR 20201911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 19, 2020 SPR20/1911 Dennis J. Kirwan, Esq. General Counsel Sta 151 Campanelli Drive, Suite A Middlebough, MA 02346 Dear Attorney Kirwan: I have received the petition of David J. Zuares, Esq. of Murphy & Riley, P.C. appealing the response of the Massachusetts State 911 Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 22, 2020, Attorney Zuares requested copies of 911 recordings and any other records relating to an incident at Logan Airport. The responsive records were the subject of a prior appeal. See SPR20/1148 Determinations of the Supervisor of Records (Supervisor) (July 23, 2020 and August 21, 2020). In my August 21, 2020 determination, I reaffirmed my July 23rd determination, ordering the Department to provide Attorney Zuares with a response pertaining to their Exemptions (c) and (f) claims, and explain whether the Department is in possession of records other than the 911 recordings. The Department’s September 4, 2020 response On September 4th, the Department provided recordings of six 911 calls in regard to a motor vehicle accident that occurred at Logan International Airport on June 9, 2019, with redactions to protect the identifying information of the callers under Exemptions (c) and Exemption (f). The Department noted that five of the six recordings were from callers to the 911 operators at the Department. The Department did not redact the 911 portions of the recordings with the 911 operator(s)’ statements. Its response also indicates that it has no transcriptions of the calls, nor does it have any records other than the 911 recordings. As a result of the redactions of the 911 callers’ statements to the 911 operator(s), in their entirety, Attorney Zuares petitioned the Supervisor, and the current appeal was opened. In his September 5th petition, Attorney Zuares contends that the Department did not follow the Supervisor’s orders by withholding the callers’ statements to the 911 operator. 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

Dennis J. Kirwin, Esq. SPR20/1911 Page 2 October 19, 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). In its September 4th letter, as it did in its original response, the Department advised Attorney Zuares that if he provided the Department with a waiver form signed by a client or clients pertaining to this incident, the Department could provide him with an un-redacted 911 recording pertaining to his client or clients. It is my understanding that the Department provided him with the waiver form. In an October 15, 2020 email to you, Attorney Zuares indicated he “will forward an executed waiver to the State 911 office.” I encourage the parties to communicate further to better enable the Department to provide the requested records. If issues remain, Attorney Zuares may file a further appeal to this office. Sincerely, Rebecca S. Murray Supervisor of Records cc: David J. Zuares, Esq., Murphy & Riley, P.C.