David W. Perry v. Reading, Town of - Police Department (SPR 20213141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3141 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 appeals This request was the subject of previous appeals. See SPR21/1567 Determination of the Supervisor of Records (July 7, 2021); See SPR21/2345 Determination of the Supervisor of Records (September 27, 2021). The Department provided a response on October 12, 2021. Unsatisfied with the Department’s response, Mr. Perry petitioned this office and this appeal, SPR21/3141, 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 SPR21/3141 Page 2 December 13, 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 October 12th Response On October 12, 2021, the Department provided a response stating, “[t]he Reading Police Department restates and reiterates that it has no additional records responsive to [Mr. Perry] public records request, and that all responsive records in the Department's possession have been turned over to [Mr. Perry].” The Department further stated, “[t]he Department’s Manual 1-8, governing the control of evidence, seized or found property states: Any disposable evidence that would be defined as a ‘public record’ or any ‘written or printed book or paper, or any photograph, microphotograph, map or plan’ [sic] will be added to the case file and retained in accordance with the Massachusetts Municipal Records Retention Schedule ... The Department is committed to following its Policy.” Mr. Perry appealed the October 12th response to this office claiming the Department cited, “its own Manual 1-8 which fails to address the Records Management issue at bar, the Department has once again ignored the Order of Supervisor Murray to explain it justification under the Public Records Law for destroying the public records in question.” Mr. Perry further explained he “raises questions with regard to the records management practices of the Department specifically focusing on the record management practices that the Department implemented when it destroyed the 20 crime scene photographs· that were in the Department's possession, custody or control for 92 days prior to March 8, 2017, the date when the records were actually destroyed.” Records Management 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). In its October 12, 2021 response, the Department did not provide information regarding proper record management practices and destruction. The October 12th response raises concerns regarding records management practices by the Department. 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

Lieutenant Detective Abate, RAO SPR21/3141 Page 3 December 13, 2021 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. Conclusion Given that the requested records do not exist and this office has no authority to compel the Department to create records, I will consider this administrative appeal closed. If Mr. Perry 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Perry