David W. Perry v. Reading, Town of - Police Department (SPR 20212345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 27, 2021 SPR21/2345 Lieutenant Detective Richard P. Abate Records Access Officer Town of Reading Police Department 15 Union Street Reading, MA 01867 Dear Lieutenant Detective Abate: I have received the petition of David Perry appealing the response of the Reading 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 31, 2021, Mr. Perry requested the Department “produce various records verifying its compliance with the Public Records Law when it destroyed records on March 8, 2017.” Previous appeal This request was the subject of a previous appeal. See SPR21/1567 Determination of the Supervisor of Records (July 7, 2021). The Department provided a response on July 7, 2021. Unsatisfied with the Department’s response, Mr. Perry petitioned this office and this appeal, SPR21/2345, 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). 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 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

Lieutenant Detective Abate, RAO SPR21/2345 Page 2 September 27, 2021 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 July 7th Response On July 7, 2021, the Department provided a response stating, “[o]n 1/19/2018, Department indicated in the original response that the photographs associated with this incident have been destroyed as a result of the case being adjudicated. In regards to Incident 629863, photographs were taken at the scene and placed into the department's evidence management system. The incident was brought forth to a hearing at Woburn District Court, probable cause was not found and a complaint did not issue. As a result of the incident being determined to not be criminal by the court, the photographs were no longer evidentiary and were removed from the evidence control room pursuant to the [Department’s] policy at the time and destroyed. A copy of the chain of evidence audit for the photographs was previously provided on 5/8/2018. There are no further responsive records.” Mr. Perry appealed the July 7th response to this office requesting the Department provided “justification under the Public Records Law and the Schedule for destroying the records, in a manner consistent with this Order, the Public Records Law, and its Regulations.” Records Management Please be aware safeguards must be instituted by the Department to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Whenever original public records are created outside the municipal offices, they must be transferred on a regular and frequent basis to secure storage in the municipal building. Office of the Sec’y of the Commonwealth of Massachusetts, Pub. Records Div., A Guide to the Massachusetts Public Records Law (2020); see also G. L. c. 66, § 1. Even where it is necessary to keep original public records in a location other than the municipal building, the records access officer has a duty to maintain copies of those records within the municipal building and make the public records

Lieutenant Detective Abate, RAO SPR21/2345 Page 3 September 27, 2021 available in a location convenient to the general public for inspection and copying. Id. Compliance with Records Management In its July 7, 2021 response, the Department indicated that it has no additional records responsive to Mr. Perry’s public records request. The basis of Mr. Perry’s appeal raises questions regarding the records management of the Department. With respect to the records that may have existed at a point in time, if the Department maintains that the responsive records no longer exist, it must explain in writing whether it complied with the Public Records Law and the Municipal Records Retention Schedule (Schedule) in destroying the records. See G. L. c. 66, § 10(a)(i). Conclusion Accordingly, the Department is ordered to provide Mr. Perry with a response to the request, explaining its justification under the Public Records Law and the Schedule for destroying the records, 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 this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Perry