Scott Ferguson v. Cambridge, City of - Police Department (SPR 20211898)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 12, 2021 SPR21/1898 Lt. Antonio Ayala Records Unit Cambridge Police Department 125 Sixth Street Cambridge, MA 02142 Dear Lt. Ayala: I have received the petition of Scott Ferguson appealing the response of the Cambridge Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 24, 2021, Mr. Ferguson requested a copy of an identified call to the Department on July 8, 2020. Previous appeal This request was the subject of a previous appeal. See SPR21/1557 Determination of the Supervisor of Records (July 8, 2021). The Department responded on July 15, 2021. Unsatisfied with the response, Mr. Ferguson petitioned this office and this appeal, SPR21/1898, was opened as 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(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). 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

Lt. Antonio Ayala SPR21/1898 Page 2 August 12, 2021 The Department’s July 15th response In its July 15th response, the Department stated, “I understand your concerns and the seeming ability of the public of obtaining certain HPO information. Unfortunately, we are unable to release this report to you.” The Department’s response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police - - - - Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how the withheld record falls within an exemption. As a result, I find the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Department is ordered to provide Mr. Ferguson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Scott Ferguson