Steven L. Smith v. Provincetown, Town of- Police Department (SPR 20211032)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1032 Barbara Peters Records Clerk Town of Provincetown Police Department 26 Shankpainter Road Provincetown, MA 02657 Dear Ms. Peters: I have received the petition of Steven L. Smith appealing the nonresponse of the Provincetown Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 30, 2021, Mr. Smith requested nine (9) categories of records pertaining to the Department and a [named official] within the Department. Claiming to not yet have received responsive records, Mr. Smith petitioned this office and this appeal, SPR21/1032, 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) (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

Barbara Peters SPR21/1032 Page 2 May 5, 2021 Status of the Requestor; Reason for the Request Please note that the reason for which a requester 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of ----------------------- Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Smith’s interest in obtaining the records shall have no bearing on the public nature of the record. Where Mr. Smith seeks the records for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Smith may wish to consider another means of seeking to obtain any existing responsive records. The Department’s May 3, 2021 response In its May 3rd response, a representative of the Department through its counsel, Michele E. Randazzo of KP Law, communicated with a staff member of the Public Records Division that there is litigation pending and Mr. Smith’s March 30th request seeks records related to the pending matter. The litigation is known as Commonwealth v. Smith, Steven L., Docket No. 1972CR00006, pending in the Barnstable Superior Court. Pending Litigation 950 C.M.R. 32.06(1)(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Barbara Peters SPR21/1032 Page 3 May 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven L. Smith Michele E. Randazzo, Esq.