Antoine Barre v. Wellesley, Town of - Police Department (SPR 20212933)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 16, 2021 SPR21/2933 Cheryl Carlson Police Records Manager Wellesley Police Department 485 Washington Street Wellesley, MA 02482 Dear Ms. Carlson: I have received the petition of Antoine Barre appealing the response of the Wellesley 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 3, 2021, Mr. Barre requested original police reports. Previous appeals This request was the subject of a previous appeal. See SPR21/2797 Determination of the Supervisor of Records (November 1, 2021). The Department provided a response to this office and Mr. Barre on November 1, 2021. Unsatisfied with the Department’s response, Mr. Barre petitioned this office and SPR21/2933 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. 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

Cheryl Carlson SPR21/2933 Page 2 November 16, 2021 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 November 1st response The Department explained in its November 1, 2021 response that “[t]he Wellesley Police Department has responded to [Mr. Barre’s] request and provided [Mr. Barre] with the original record [the Department has] in [their] possession. If [Mr. Barre] requires something different please send in a new or modified request.” In his appeal, Mr. Barre stated, “the response from the Wellesley police station is totally unacceptable and does not respond to my specific request.” 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). The Department confirmed it provided all records responsive to the request. Conclusion Where the Department has provided all records in its possession responsive to Mr. Barre’s requests and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Antoine Barre