Claudia Leis Bolgen, Esq. v. Malden, City of - Police Department (SPR 20202045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2020 SPR20/2045 Lieutenant Ryan Fortier City of Malden Police Department 800 Eastern Avenue Malden, MA 02148 Dear Lieutenant 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 appeals The requested records were the subject of prior appeals. See SPR20/1534 and SPR20/1839 Determinations of the Supervisor of Records (Supervisor) (September 15, 2020 and October 14, 2020). The Department provided Attorney Bolgen with copies of the responsive records. However, still outstanding are four (4) reports and/or CAD incident reports numbered: 17020430; 17020294; 17020422 and 17020402. In a September 16, 2020 email, you informed Attorney Bolgen, “[p]olice reports for any remaining calls for service are being withheld due to specific exemptions under the [P]ublic [R]ecords [L]aw (exemptions A (CORI, Domestic) Exemption (f) (investigatory) and exemption C (medical).” Unsatisfied with the Department’s September 16th response, Attorney Bolgen petitioned the Supervisor, and the current appeal was opened. At issue in Attorney Bolgen’s current appeal is that the Department is withholding these records, in their entirety, under Exemptions (a), (c) and (f) of the Public Records Law. It is Attorney Bolgen’s contention that the Department could redact information in the records under the claimed exemptions, and provide her with the balance of the record(s). In an effort to resolve the outstanding issues with Attorney Bolgen’s request, a Senior Attorney in the Public Records Law contacted you by telephone; however, was unable to connect with you directly. 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 SPR20/2045 Page 2 November 4, 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 Attorney Leis Bolgen’s request for the four incident/CAD reports, in their entirety, under the Criminal Offender Records Information Act (CORI) and the Domestic Violence statute(s), as they operate through Exemption (a); medical information under Exemption (c); and Exemption (f). 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 under Exemptions (a), (c) and (f) of the Public Records Law. 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). Based on the Department’s September 16th response, I find that the Department did not meet its burden of specificity in claiming Exemptions (a), (c) and (f) to withhold the reports and/or CAD reports in their entirety under the claimed exemptions. Conclusion Accordingly, the Department is ordered to review the records, redact where necessary under the exemptions, and provide Attorney Leis Bolgen with the 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.

Lt. Ryan Fortier SPR20/2045 Page 3 November 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Claudia Leis Bolgen, Esq., Bolgen & Bolgen