Mitchell Kosht v. Attleboro, City of - Police Department (SPR 20211224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2021 SPR21/1224 Janice Churchill Records Department Attleboro Police Department 12 Union Street Attleboro, MA 02703 Dear Ms. Churchill: I have received the petition of Mitchell Kosht of the Committee for Public Counsel Services appealing the response of the Attleboro Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 8, 2021, Mr. Kosht requested the following records: 1. A spreadsheet, e.g., Microsoft Excel, or other flat file format, e.g., comma-separated values (CSV) or tab-separated values (TSV), containing the following fields of data for all personnel employed by the Attleboro Police Department: a) Employee Identification number b) Last Name c) First Name d) Badge number e) Rank f) Status (i.e, "active" or "suspended with pay") g) Date the individual joined the Attleboro Police Department 2. A spreadsheet identical to that generated in response to the first part of this request, with the same information as of January 1st of each year dating back to 2010. The Department responded on April 12, 2021. Unsatisfied with the Department's response, Mr. Kosht appealed and SPR21/1224 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

Janice Churchill SPR21/1224 Page 2 May 25, 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(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). The Department’s April 12th response In its April 12th response, the Department stated, “[t]he mandatory disclosure provisions of the Public Records Law describes that a records clerk or records access officer is not required to create a record to comply with a request. Your request, would require me to create the multiple spreadsheets therefor there is no responsive record.” Current appeal In his appeal, Mr. Kosht stated that the Department, “…be required to extract the relevant data from the Attleboro PD's HR software or any equivalent.” 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). Based upon a conversation between a Public Records Division staff attorney and a Department representative, it is my understanding that the Department maintains the requested records in paper form and is thus unable to provide the responsive records in the requested format. I encourage the parties to communicate further to determine whether the requested information can be provided in an alternative format. Conclusion Where the Department does not maintain the requested records electronically, I will consider this appeal closed. After further communication, if issues remain unresolved, Mr. Kosht may file a subsequent appeal.

Janice Churchill SPR21/1224 Page 3 May 25, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mitchell O’Farrell