Steven Fitzgerald v. Everett, City of - Police Department (SPR 20212349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2021 SPR21/2349 Chief Steven A. Massie Everett Police Department 45 Elm Street Everett, MA 02149 Dear Chief Massie: I have received the petition of Steven Fitzgerald appealing the response of the Everett 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 30, 2021, Mr. Fitzgerald requested in pertinent part, “… [numerous] … documents … pertaining to the inaccurate reports that were referred to in the July 30, 2021 Everett MA Police facebook page concerning an individual arrested for a peaceful protest in front of Everett City Hall … [including] …all communications and reports between any member of the Department and the Office of Mayor …” The Department responded. Unsatisfied with the response, Mr. Fitzgerald petitioned this office and this appeal, SPR21/2349, 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); 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. 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 Steven A. Massie SPR21/2349 Page 2 September 24, 2021 The Department’s Response The Department provided a redacted arrest report but did not provide all requested documents. Based on Mr. Fitzgerald’s appeal, in conjunction with the Department’s response, it is unclear if the Department possesses any additional records responsive to his 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Fitzgerald 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: Steven Fitzgerald