Shawn Deleskey v. Peabody, City of - Police Department (SPR 20210712)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 2, 2021 SPR21/0712 Captain Douglas S. Marcus Peabody Police Department 6 Allens Lane Peabody, MA 01960 Dear Captain Marcus: I have received the petition of Shawn Deleskey appealing the response of the Peabody Police Department (Department) to his request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On February 9, 2021, Officer Deleskey requested and identified file and related records. Previous appeal This request was the subject of a previous appeal. See SPR21/0490 Determination of the Supervisor of Records (March 5, 2021). The Department responded on March 19, 2021. Unsatisfied with the response, Mr. Deleskey appealed and SPR21/0712 was opened as 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). 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

Captain Douglas S. Marcus SPR21/0712 Page 2 April 2, 2020 The Office’s March 19th response In its March 19th response, the Department stated, “[t]he attachment contains all records currently in possession of the Peabody Police Department in regards to potential employee file” of the requested individual. In a conversation between a Public Records Division staff attorney and a Department representative, the Department stated that it had no further records responsive to the request. No Duty to Create Records 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). Conclusion Whereas the Department does not possess any additional records responsive to Mr. Deleskey’s request and has no duty to create records, I will now consider this administrative appeal closed. If Mr. Deleskey is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Shawn Deleskey