Todd Wallack v. North Andover, Town of - Police Department (SPR 20212058)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 27, 2021 SPR21/2058 Charles P. Gray Chief of Police Town of North Andover Police Department 1475 Osgood Street North Andover, MA 01845 Dear Chief Gray: I have received the petition of Todd Wallack of WBUR appealing the response of the North Andover Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2021, Mr. Wallack requested “an electronic log of Internal Affairs complaints/investigations against sworn officers of the Department as far back as you maintain the log in your current computer system.” In a July 26, 2021 email response, the Department advised Mr. Wallack that it does not maintain an electronic log of internal affairs complaints/investigations against sworn officers in the Department into allegations of police misconduct. In a July 26th email from Mr. Wallack to the Department, Mr. Wallack wrote, “I just wanted to clarify: Do you happen to have a log of your terminated officers in paper form instead? If so, could we have a copy? If not, could you clarify how you keep track of your terminations? Do you use a spreadsheet, database, or some other tool?” When Mr. Wallack did not receive a response to his modification/clarification of the request, he petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In Mr. Wallack’s petition, he states, “[i]t is not clear whether the [D]epartment has responsive records and the [Department] has not responded to follow up questions. Instead, the [D]epartment indicated we have the right to appeal its response. To clarify, we are seeking the log of internal affairs records even if it exists only in paper form. Alternatively, if it maintains a database or spreadsheet of internal affairs investigations, we would like a copy of that database or spreadsheet.” The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Chief Charles P. Gray SPR21/2058 Page 2 August 27, 2021 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). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Mr. Wallack’s clarification and/or modification of the July 6, 2021 request In a July 26, 2021 email, Mr. Wallack clarified his request seeking any records that the Department is in possession of that will provide him with the records/information he sought on July 6th. The Department did not respond to his July 26th email. As a result, this appeal was opened. In its July 26th response, the Department indicates it does not have an electronic log of internal affairs complaints/investigations against sworn officers of the Department into allegations of police misconduct. However, it is unclear whether the Department is in possession of any records that are responsive to Mr. Wallack’s request. As such, I find that the Department has not met its burden of specificity in responding to this request, and Mr. Wallack’s clarification/modification of the request. 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). The Department must clarify this issue. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack 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.

Chief Charles P. Gray SPR21/2058 Page 3 August 27, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack