Bethany J. Rogers v. Randolph, Town of - Police Department (SPR 20210378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2021 SPR21/0378 William Pace Chief of Police Randolph Police Department 41 South Main Street Randolph, MA 02368 Dear Chief Pace: I have received the petition of Bethany Rogers, Esq. of Bethany Rogers, P.C., appealing the response of the Randolph Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 22, 2021, Attorney Rogers requested: Any and all 911 recordings, log entries, Computer Aided Dispatch sheets, incident reports, and other document(s) relating or in any way pertaining to any and all calls about . . . Blakely Circle, Randolph, Massachusetts 02468 and/or any calls, trips, or responses to . . . Blakely Circle, Randolph, Massachusetts 02368, including any follow-up, for the period beginning January 1, 2005 to the present. The Department responded on January 26, 2021, providing certain records and indicating others are exempt from disclosure. Unsatisfied with the Department’s response, Attorney Rogers petitioned this office and this appeal, SPR21/0378, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Rogers’ purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial 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 William Pace SPR21/0378 Page 2 March 2, 2021 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). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Attorney Rogers may wish to consider another means of seeking to obtain any existing responsive records. 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s January 26th response In its January 26, 2021 response, the Department enclosed a log and indicated, “[p]lease note that medical and domestic records are exempt. . . .” In her appeal petition, Attorney Rogers states, “. . . I submitted a request for several records that were not addressed in the response. . . . In its response to my request, the Randolph Police Department sent a log only . . . and none of the other records that were described in the request. Additionally, there are several notes in that log indicating records that the Records Access Officer believes to be exempt from the request. Finally, the Records Access Officer sent a copy of G.L. c. 6A, s. 18G, which indicates that 911 calls shall be retained for a period of ‘not less than 1 year.’ There was no other response issued to my request for 911 recordings.” Based on the foregoing, it is unclear if the Department possesses additional records as reflected in Attorney Rogers’ request. Particularly, it is unclear if the Department possesses 911 recordings, Computer Aided Dispatch sheets, incident reports, trips or responses and other document(s) relating or in any way pertaining to any and all calls about the specified address.

Chief William Pace SPR21/0378 Page 3 March 2, 2021 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); see also, G. L. c. 66, § 10(b)(iv) (a 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”). If the records are within the Department’s possession and it intends to withhold the documents an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption). Further, although the Department cites G. L. c. 6A, § 18, which states, “[t]he department shall require that each PSAP that possesses enhanced 911 service shall retain 911 recordings for a period of not less than 1 year[,]” it is unclear if the Department possesses any 911 recordings. Also, where Attorney Rogers requests records from 2005 to the present, it is uncertain whether the Department possesses any 911 recordings that are less than a year. 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). The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Attorney Rogers with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Bethany Rogers, Esq.