Artie Grenier v. Lowell, City of - Police Department (SPR 20210387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 2, 2021 SPR21/0387 Stacie Moeser Esq. 2nd Assistant City Solicitor Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Atwood: I have received the petition of Artie Grenier appealing the response of the Lowell 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 28, 2021, Mr. Grenier requested numerous documents concerning a missing person’s case from January 18, 2010 to present. The Department responded on February 12, 2021. Unsatisfied with the response, Mr. Grenier petitioned this office and SPR21/0387 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); 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. The Department’s February 12th Response In its February 12th response, the Department stated “I have attached the CAD call from January of 2010 when [named person] was reported missing…After speaking with [named] Captain about this case and the ‘case file’ he respectfully declines any access to the reports in the 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

Stacie Moeser Esq. SPR21/0387 Page 2 March 2, 2021 file as its an open and ongoing investigation.” Burden of specificity in claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to 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. I find that the Department has not met its burden to withhold responsive records under the exemption described above; in particular, it has not identified which specific records it is withholding, nor has it provided specific reasons for the applicability of these exemptions as required by G. L. c.66, § 10(b )(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Grenier with a response to the request, 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. Mr. Grenier may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Stacie Moeser Esq.