David Zuares v. Oxford, Town of - Town Clerk (SPR 20211027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1027 Chief Anthony P. Saad Town of Oxford Police Department 503 Main Street Oxford, MA 01540 Dear Chief Saad: I have received the petition of Attorney David Zuares appealing the response of the Oxford Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2021, Attorney Zuares’ office requested “copies of any and all documents or reports relating to the Oxford Police and Fire Department’s response to an incident that occurred on [a certain date] at [a particular address].” The Department responded on April 6, 2021, stating “[t]his incident is being handled by the Worcester DA’s Office. They are coordinating all reports. They are your best and only source for this information at this point.” The Department forwarded Attorney Zuares’ request to the Worcester County District Attorney’s Office, which in turn notified Attorney Zuares by email on April 13, 2021 that “the District Attorney’s Office is responsible for that investigation and any potential prosecution and is therefore the custodian of the materials you seek. See G. L. c. 38, § 4. The investigation is currently ongoing, so this office is unable to release any of the records you requested at this time as they constitute ‘investigatory materials’ that are exempt from disclosure under the public records law. See G. L. c. 4, § 7(26)(f).” Unsatisfied with the Department’s response, Attorney Zuares appealed, and this case 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). 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 Anthony P. Saad SPR21/1027 Page 2 May 5, 2021 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. Current Appeal In his appeal petition, Attorney Zuares contends that the response from the Worcester District Attorney’s Office “cited an inapplicable statute for its position that the District Attorney’s Office was the custodian of the responsive records and failed to itemize the responsive records with a specific explanation as to why each item would not be disclosed.” Possession, Custody, or Control of Public Records The first statute cited by the District Attorney’s Office, G. L. c. 38, § 4, concerns the duties of District Attorneys and Medical Examiners in the investigation and transportation of bodies in cases of unnatural or suspicious death. It is uncertain how this statute applies apply in this matter. Additionally, it is unclear from the Department’s response if it possesses the requested records. The duty to comply with a request 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 whether it possesses the requested records. If it does possess them, the Department is advised that it must not only cite an exemption for withholding the records, but must also state why the exemption applies to the withheld or redacted portion of the responsive records. G. L. c. 66, § 10(b)(iv). Conclusion Accordingly, the Department is ordered to provide Attorney Zuares with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Chief Anthony P. Saad SPR21/1027 Page 3 May 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Zuares, Esq.