Donovan Lee v. Easthampton, City of - Police Department (SPR 20212251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2021 SPR21/2251 Chief Robert J. Aliberti Easthampton Police Department 32 Payson Avenue Easthampton, MA 01027 Dear Chief Aliberti: I have received the petition of Donovan Lee appealing the response of the Easthampton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 12, 2021, Mr. Lee requested: (1) The department armorer's log of all weapons that are owned or authorized by the department; (2) The file maintained by the department Training Coordinator of all issued and authorized duty weapons for each member of the department; (3) The department Training Coordinator's log of each officer's qualifications and re-qualifications. Previous appeal This request was the subject of a previous appeal. See SPR21/1643 Determination of the Supervisor of Records (July 19, 2021). The Department provided a response on August 2, 2021. Unsatisfied with the Department’s response, Mr. Lee petitioned this office and this appeal, SPR21/2251, was opened as a 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). 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 Robert J. Aliberti SPR21/2251 Page 2 September 16, 2021 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. The Department’s August 2nd Response The Department’s August 2, 2021 response provided records and indicated, “[a]ttached [Mr. Lee] will find our Department Armorer and Firearms Training Coordinator's log of all weapons owned and authorized by the Department. Additionally, [Mr. Lee] will find a log of each officer's firearms qualifications and re-qualifications dating back to January 1, 2019.” In Mr. Lee’s appeal to this office on September 1, 2021, he stated, “[i]n our original request we had requested 3 specific documents that are referred to in the EPD's Use of Force Policy. The response we have received only supplies 2 of the 3 requested documents with no explanation to why one of the documents is missing.” Lastly, Mr. Lee stated, “[w]e also have an issue with the Document listing all weapons, it is incomplete. That list should have all serial numbers of the weapons listed.” Records in existence 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). If the Department does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Mr. Lee regarding the existence of responsive records, I find it is unclear whether additional responsive records exist. The Department must clarify this matter. This office continues to encourage Mr. Lee and the Department to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably).

Chief Robert J. Aliberti SPR21/2251 Page 3 September 16, 2021 Conclusion Accordingly, the Department is ordered to provide Mr. Lee 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: Donovan Lee Richard Massina, Esq.