Michael Gould v. Middleborough, Town of - Police Department (SPR 20212363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 24, 2021 SPR21/2363 Amy Dowler Records Division Town of Middleborough Police Department 350 Wood Street Middleborough, MA 02346 Dear Ms. Dowler: I have received the petition of Michael Gould appealing the response of the Town of Middleborough Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Gould requested: 1. All video surveillance from the Department on May 8, 2021, every camera recording from the entire building; 2. The Department’s policies as of January 1, 2021; 3. The un-redacted police report from Sgt. Simonne Ryder 5/8/21-8/9/21 regarding 21- 7719-AR; and, 4. All photos pertaining to Arrest #21-7719, particularly booking photo and photo from inside the ambulance taken by BCI. The Department informed Mr. Gould in its September14, 2021 response that it is not in possession of any records regarding his request number 4. Mr. Gould is advised that 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 (emphasis added). See G. L. c. 66, § 10(a)(ii), (b)(ii). The Department also withheld certain of the records under Exemption (n). Unsatisfied with the Department’s September 14th response, Mr. Gould petitioned the Supervisor, and this appeal was opened. 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 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

Amy Dowler SPR21/2363 Page 2 September 24, 2021 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). Status of the requestor; reason for the request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. ------------------------------ 59, 64 (1976). Therefore, Mr. Gould’s interest in obtaining the records shall have no bearing on the public nature of the records. Where Mr. Gould seeks records for a judicial process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). Based upon a conversation between this office and a representative of the Department, along with information provided by Mr. Gould in his petition to the Supervisor, I learned that the records that are the subject of this appeal are also the subject of an active criminal process in the Wareham District Court. See Commonwealth v. Gould, Docket No. 21060CR0540. Active litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Conclusion In light of the active prosecutorial matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Accordingly, I consider this appeal closed.

Amy Dowler SPR21/2363 Page 3 September 24, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Gould