Jim Haddadin v. Newton, City of - Police Department (SPR 20210033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 20, 2021 SPR21/0032; SPR21/0033 Steven R. Smith Record Access Officer Newton Police Department Information Technology Bureau 1321 Washington Street Newton, MA 02465 Dear Mr. Smith: I have received the petitions of Jim Haddadin of NBC10 Boston appealing the response of the Newton Police Department (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 6, 2021, Mr. Haddadin requested, “copies of the audio recording of the 911 call for service in the vicinity of [named location] received at approximately 1:43 p.m. on Jan. 5, 2021 [and] copies of all recordings of dispatcher and/or police radio communications regarding the call for service in the area of [named location] received at approximately 1:43 p.m. on Jan. 5, 2021.” Unsatisfied with the Department's response, Mr. Haddadin appealed and SPR21/0032 and SPR21/0033 were 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. 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

Steven R. Smith SPR21/0032; SPR21/0033 Page 2 January 20, 2021 The Department’s Responses In its response, the Department stated, “[a]s this is an active case, all inquiries are being handled by the Middlesex District Attorney's Office. Please contact them for more information.” Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. 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. See also 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). Despite the Department’s response, it remains unclear if the Department possesses the records as requested. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Haddadin with a response to the requests, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jim Haddadin