Sean Hempseed v. Bridgewater, Town of - Police Department (SPR 20212823)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 4, 2021 SPR21/2823 Ann Marie Gill Records Access Officer Bridgewater Police Department 220 Pleasant Street Bridgewater, MA 02324 Dear Ann Marie Gill: I have received the petition of Mr. Sean Hempseed appealing the response of the Bridgewater Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 2, 2021, Mr. Hempseed made a request for a blank copy of a “police incident report form.” On October 4, 2021, the Department provided a response. On October 26, 2021, unsatisfied with the Department’s response, Mr. Hempseed petitioned this office and this appeal, SPR21/2823, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s October 4th response On October 4, 2021, the Department provided Mr. Hempseed with a copy of a police statement form and a response stating, “We [sent] you a statement form but you will have to fill- 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

Ann Marie Gill SPR21/2823 Page 3 November 4, 2021 out and return. I recommend you include the case # so it goes with the correct incident. Let me know if you need anything else.” Current Appeal On October 4th, Mr. Hempseed responded by stating, “I need a ‘police incident form’ per a state guidance document.’” On October 7th, Mr. Hempseed stated, “I am still waiting…for a Police Incident Report Form…” On October 7th, the Department stated, “as we discussed and indicated in the email below, please see the attached statement form. If you are reporting [an] incident that occurred in Bridgewater, you can return this form to us with the details of the event. Once that is received and based on the information you provide, we will determine what if any action we can take or if further investigation is warranted. If you are seeking a copy of a report that is already on file, you can file a public records request at bpdrecordrequest@bridgewaterma.org. The directions are included on the attached information sheet and are also posted on our website. If either of these are not what you seek, you are always welcome to come in and speak with an officer directly to clarify.” On October 26th, Mr. Hempseed stated, “This is NOT the form I requested. The chief is being evasive because he does not want me to investigate this matter.” In a call between a member of the Police Department and the Public Records Division, the Department explained that the Police Incident Form is an electronic form that is submitted via a database in-person at the Department in conjunction with the physical statement form that had been provided to Mr. Hempseed by the Department on October 4th. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Whereas the Department does not possess any further records responsive to Mr. Hempseed’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Hempseed is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b).

Ann Marie Gill SPR21/2823 Page 3 November 4, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Hempseed