Ethan Genter v. Barnstable, Town of - Police Department (SPR 20210112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2021 SPR21/0112 Kathleen I. Hinckley Records/Property Supervisor Barnstable Police Department 1200 Phinneys Ln Hyannis, MA 02601 Dear Kathleen I. Hinckley: I have received your petition on behalf of the Barnstable Police Department (Department) seeking an extension of time to produce records. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Ethan Genter. Id. In a letter dated December 10, 2020, Mr. Genter requested “any internal affairs records for Murphy and Guiney.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). 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

Kathleen I. Hinckley SPR21/0112 Page 2 January 26, 2021 If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition dated January 19, 2021, the Department seeks an extension of 30 business days to produce records. The Department states “[o]n December 24, 2020, we provided the requestor a written response, wherein we provided a statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the department. In particular, the request will require our department to conference with our legal counsel to determine what is and is not a public record.” The Department explains “there is a good cause to grant this single extension based upon the following factors: As there is ongoing civil litigation regarding these two officers we have been required to confer with two different sets of attorneys at separate law offices. One is our Town counsel and the other an outside agency. Both attorney’s are still in the process of review of the IA files. Also, due to the COVID pandemic the attorneys are not readily available causing unexpected time delays. Unforeseen circumstances such as teleworking have impeded this request for public records assistance.” In a follow up email dated January 26, 2021, the Department writes, “[w]e are still working with the attorney’s to get this finalized. However, I do not believe 30 days, as requested, will be required. We are hoping to have this finalized by the end of this week or beginning of next week.” Conclusion I find the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 10 business days to furnish copies of records responsive to Mr. Genter’s request. See G. L. c. 66, § 10(c). To the extent possible, the Department must provide responsive records on a rolling basis. Further, this office encourages Mr. Genter and the Department continue to communicate to facilitate providing records more efficiently and affordably. Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, Mr. Genter has the right to seek

Kathleen I. Hinckley SPR21/0112 Page 3 January 26, 2021 judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4),10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ethan Genter