Jose Martinez v. Worcester, City of - Police Department (SPR 20211246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2021 SPR21/1246 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester Law Department 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Jose Martinez appealing the response of the City of Worcester 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 16, 2021, Mr. Martinez requested “a copy of the records of the Police Crash Report…” of a specified incident. The Department provided a response on February 18, 2021, which included a link to responsive records. Unsatisfied with the Department’s response, Mr. Martinez petitioned this office and this appeal, SPR21/1246, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Martinez’s purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). 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 E. Thompson, Esq. SPR21/1246 Page 2 June 1, 2021 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. Current Appeal In his appeal petition, Mr. Martinez states “…we are appealing the City[’]s response…which entered against us on February 18, 2021 (Denied Crash Reports Police Public Records)…[u]nder 5 U.S.C. section 552, 9 Exemptions does not apply in this case of FOIA.” Subsequent to the opening of this appeal, the Department provided a response to this office on May 19, 2021, indicating “[t]he City did not withhold records or deny the request.” Further, the City provided a response to Mr. Martinez on May 19, 2021, offering assistance in accessing the responsive records. Conclusion Based on the foregoing, it is unclear what the basis of Mr. Martinez’s appeal is. Mr. Martinez is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Mr. Martinez may wish to clarify his objections to the City’s response. Please be aware that all petitions for appeal of a response by a records access officer must be made within 90 calendar days of the date of the response by a records access officer. See 32.08(1)(d). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jose Martinez