Brian M. Cullen v. Melrose, City of - Police Department (SPR 20202128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2020 SPR20/2128 Chief Michael L. Lyle Melrose Police Department 56 West Foster Street Melrose, MA 02176 Dear Chief Lyle: I have received the petition of Attorney Brian M. Cullen appealing the response of the Melrose 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 August 1, 2020, Attorney Cullen requested 12 categories of records pertaining to an incident that occurred on April 9, 2020. The requested records include arrest reports; investigatory documents; as well as identified correspondence regarding the incident. The Department provided a response on August 4, 2020. Unsatisfied with the Department’s response, Attorney Cullen petitioned this office, and SPR20/2128 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) (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). 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 Michael L. Lyle SPR20/2128 Page 2 November 17, 2020 Current Appeal In its August 4th response, the Department indicates request 1-4 “[r]efer to the accompanying document detailing instructions to obtain the redacted arrest report from the Malden District Court.” For requests 1-6, and 9, the Department states “[y]ou may contact the Middlesex District Attorney's office, or wait until the case is concluded.” In his appeal, Attorney Cullen states “I am appealing from the Melrose Police Department's Response / failure to respond to my requests nos. 1-6 and no.9.” Attorney Cullen indicates “…the response did not contain a copy of any Melrose Police Dept.' s arrest report(s), instead it directed me to travel to the Courthouse to request the Melrose Police report. The Response did not claim that the arrest report met any exemption under the State Public Records Act or reference any other reason why the Melrose Police Department was free to withhold it from my request.” Attorney Cullen contends “[t]he Response also failed to produce any reports concerning the Melrose Police Department's investigation and supervisory review of the use of force by a Melrose police officer in connection with the incident.” Attorney Cullen further indicates “[t]he Department re-directed me to the Middlesex District Attorney's office to request copies of the Department's own correspondence…I do not believe it is an appropriate response to Request no. 9 to re-direct me to another public agency to obtain copies of the Melrose Police Dept's own communications.” Records in existence; burden of specificity I find that the Department has not met its burden in responding to Attorney Cullen’s request. 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). In light of the issues raised in Attorney Cullen’s appeal regarding the existence of responsive records, and despite the Department’s response, I find it is unclear why responsive reports and correspondence have not been provided. Specifically, the Department must clarify whether responsive records exist for the categories of records described above. Please be advised, under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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…”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Conclusion Accordingly, the Department is ordered to provide Attorney Cullen with a response to his request, in a manner consistent with this order, the Public Records Law and its Regulations

Chief Michael L. Lyle SPR20/2128 Page 3 November 17, 2020 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: Brian M. Cullen, Esq.