Shawn D. Blankenship v. North Brookfield, Town of - Public Schools (SPR 20202252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2252 Mark L. Smith Chief of Police North Brookfield Police Department 55 School Street North Brookfield, MA 01535 Dear Chief Smith: I have received the petition of Shawn D. Blankenship appealing the response of the North Brookfield Police Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on October 2, 2020, Mr. Blankenship requested, “[a]ll records of disciplinary actions taken against [a named] Lieutenant], including all documents and recordings.” Unsatisfied with the Department’s response, Mr. Blankenship petitioned this office, and SPR20/2252 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(d)(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). Unique right of access; purpose of request In his November 18th appeal, Mr. Blankenship states the appeal “concerns legal matters in court.” It should be noted that the discovery process and the Public Records Law are two 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

James Ross SPR20/2252 Page 2 December 2, 2020 distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Blankenship may wish to consider another means of seeking to obtain any existing responsive records. The Department’s November 12, 2020 response In its November 12th response, the Department stated, “… this Department does not have possession, custody or control of the records requested.” Please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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 a conversation between a Public Records Division staff attorney and a Department representative, the Department confirmed that it had no records responsive to the request. Conclusion Whereas the Department does not possess additional records responsive to Mr. Blankenship’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Shawn D. Blankenship