Edward M. Sheridan v. Middlesex County Sheriff's Office (SPR 20212076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2021 SPR21/2076 Malav Patel Records Access Officer Middlesex County Sheriff’s Office 400 Mystic Avenue, 4th Floor Medford, MA 02155 Dear Malav Patel: I have received the petition of Attorney Edward M. Sheridan appealing the response of the Middlesex County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2021, Attorney Sheridan requested “a complete copy of all reports, interviews, recordings and or videos of any and all matters connected to [a specified] investigation as well as the names and contact information of any and all staff connected to this investigation . . . particularly . . . the specific action, if any, taken against the named offender.” The Office responded on August 9, 2021, stating that “[t]he information [Attorney Sheridan] request[ed] pertains to confidential and privileged internal records, and therefore will not be furnished.” Unsatisfied with the Office’s response, Attorney Sheridan appealed, and this case was opened as a result. Status 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, neither Attorney Sheridan’s status, nor that of his client, will play any role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Malav Patel SPR21/2076 Page 2 August 30, 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 agency 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. 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. Burden of Specificity; Unclear which Exemption Cited 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 Office did not meet its burden of demonstrating how the responsive records may be withheld in their entirety under the Public Records Law. Based on the Office’s response, it is unclear which exemption the Office is citing in order to withhold the requested records. See G. L. c. 66, § 10(b )(iv) (a 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”). See also Globe Newspaper Co. ------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Specifically, the Office must identify the records it is withholding. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Attorney Sheridan with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Malav Patel SPR21/2076 Page 3 August 30, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Edward M. Sheridan, Esq.