Laura H. Ortiz v. Dracut, Town of (SPR 20211797)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2021 SPR21/1797 Kathleen M. Graham Town Clerk – Records Access Officer Town of Dracut 62 Arlington Street; Room 113 Dracut, MA 01826 Dear Ms. Graham: I have received the petition of Laura Ortiz and Justin George appealing the response of the Town of Dracut (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 22, 2021, Ms. Ortiz and Mr. George requested: 1. Dracut Police Department records any/all responsive to [an identified person] at that time while in his official duties (not as a personal citizen) for July 1, 2019-July 21, 2019 (regardless the location they exist in or device/other located on and regardless the format); 2. Dracut Police Department logs, emails, texts, notes, other any/all responsive and to/from [an identified person] at that time while in his official duties (not as a personal citizen) for July 1, 2019 - July 21, 2019 regardless if you name him or refer to him in any way (regardless the location they exist in or device/other located on and regardless the format); 3. Dracut Police Department as well as Dracut Fire Department records of policies for 911 calls, policies for recording information, policies for creating records in regards to 911 calls, policies for standard procedure for how a Trinity Ambulance is requested etc. in regards to anyone calling 911 from start of incident to completion of governmental services (regardless the location they exist in or device/other located on and regardless the format); and 4. Dracut Police Department conjoined Dracut Fire Department records any/all responsive to [an identified person] at that time while in his official duties (not as a personal citizen) for July 1, 2019 – July 21, 2019 (regardless the location they exist in or device other located on and regardless the format). 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

Kathleen M. Graham SPR21/1797 Page 2 August 6, 2021 Prior appeal; time petition The Town’s Police Department (Department) provided Ms. Ortiz with a response on March 1, 2021, informing her it will provide any and all responsive documents that are not prohibited from release by statute or exemption. The Department cited Exemptions (c), (f) and the attorney-client privilege as potential exemptions that may be found while reviewing the records. The Department also filed a petition for an extension of time to provide the records. The Supervisor of Records (Supervisor) granted the Town an additional fifteen business days to respond to the request. See SPR21/0523 Determination of the Supervisor (March 5, 2021). On April 13th and April 14th, the Department provided records responsive to Ms. Ortiz’s February 22nd request. After a review of the records received, on June 28, 2021 Ms. Ortiz petitioned the Supervisor again. She asserted the Department and/or Town did not provide all the records responsive to the request. As a result, appeal SPR21/1605, was opened. See SPR21/1605 Determination of the Supervisor (July 13, 2021). In my July 13th determination, I found the Department provided Ms. Ortiz with redacted records without specifically explaining the exemptions in the Public Records Law that would support the withholding of the redacted content in those records. Furthermore, I found that was unclear whether the Department and/or Town is in possession of additional records responsive to Ms. Ortiz’s request, or whether the Department and/or Town is withholding any records in their entirety. I ordered the Department and/or Town to clarify that issue. 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). Current appeal On July 19, 2021, the Department provided Ms. Ortiz and Mr. George with a response regarding my July 13th determination. The Department informed Ms. Ortiz and Mr. George that it provided them with a substantial number of emails and records responsive to the request. The Department did not withhold any records responsive to Requests 1 and 2. The Department redacted certain of the records under G. L. c. 41, § 97D and G. L. c. 41, § 98F due to reports, communications and entries in the police daily logs involving abuse by family or household members, and the Department’s responses to claims of abuse by family or household members. With regard to Ms. Ortiz and Mr. George’s Requests 3 and 4, the Department indicated that the only record in its possession responsive to those requests is the Department’s Communication Policy. The Department informed Ms. Ortiz and Mr. George that it produced all

Kathleen M. Graham SPR21/1797 Page 3 August 6, 2021 records in the possession of the Department. On July 20, 2021, Ms. Ortiz petitioned the Supervisor regarding records that may be in the possession of other Town departments, not just the police and/or fire. She lists fourteen categories of records that she and Mr. George assumed would be in the possession of the Town that have not been provided. In addition, Ms. Ortiz and Mr. George also indicated that they understand that the Department may redact the records pertaining to abuse by family or household members. However, Ms. Ortiz questions whether too much information may have been redacted as to abuse of family and/or household members. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Town must provide an index to identify what records were redacted concerning information contained in those records that may be restricted due to abuse by family or household members. The Town must detail the exemption(s) in the Public Records Law that it redacted information from each of the records. With regard to the fourteen categories of records, Ms. Ortiz and Mr. George indicate that they did not intend to limit their request to just the identified person, but to all the Town’s public officials. Ms. Ortiz explains that by requesting information relating to Dracut public officials while in their official duties and capabilities, she expected that there would be records even by non-government persons through correspondence sent to the Town and from the Town. While the requestors assert that they expected additional records pertaining to all the Town departments, a review of the February 2021 response the requestors provided to this office reveals that the request was sent to the Police Department. It is unclear whether a request for the 14 categories of records that may be in the possession of other Town departments was ever sent to the Town’s Records Access Officer. Subsequently, this office learned that the Town’s Legal Counsel, James A. Hall of Qua, Hall, Harvey & Walsh will provide a response to Ms. Ortiz and Mr. George’s July 20th petition for the current appeal pertaining to the 14 categories of records they are seeking from the Town as a whole. In addition, the Town must address the redaction of the records received from the Police Department. Conclusion Accordingly, the Town is ordered to provide Ms. Ortiz and Mr. George with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

Kathleen M. Graham SPR21/1797 Page 4 August 6, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Ortiz James A. Hall, Esq., Qua, Hall, Harvey & Walsh