Sean Hempseed v. Brockton, City of - Police Department (SPR 20220075)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 27, 2022 SPR22/0075; SPR22/0086 Scott Besarick Sergeant City of Brockton Police Department 7 Commercial Street Brockton, MA 02301 Dear Sergeant Besarick: I have received the petitions of Sean Hempseed appealing the response of the Brockton Police Department (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 9, 2021, Mr. Hempseed requested various records regarding a named officer. Prior Appeals The requested records were the subject of prior appeals. See SPR21/3389 and SPR21/3391 Determinations of the Supervisor of Records (January 12, 2022). In my January 12th determinations I found that the Department provided supplemental responses on January 5th. Unsatisfied with the Department’s January 5th responses, Mr. Hempseed petitioned this office. As a result these appeals, SPR22/0075 and SPR22/0086, were 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

Scott Besarick SPR22/0075; SPR22/0086 Page 2 January 27, 2022 The Department January 5th responses In its January 5th responses, the Department states, “[t]his department does not have any ‘contacts’ or ‘non-contacts’ made to [named officer] on May 15, 2021. This department does not have a journal or call log notes in regards to contacts of [named officer]. This department does not have a journal or call log notes in regards to what times contact (or not) was established with [named officer]. This department does not have a shift commander administrative log.” The Department further stated, “the department or [named officer] do not have a vehicle log book that shows the whereabouts of his vehicle on May 15, 2020 or any other date. This document does not exist. The department does not have a dispatch log or journal regarding dispatching his vehicle or post that night. The department does not have anything in regards to dispatching, moving, recovering, or towing of [named officer] Vehicle. This accident happened in another jurisdiction. The Massachusetts State Police did a thorough and independent investigation on this accident. The Brockton Police had nothing to do with the investigation of this accident.” 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 Where the Department does not possess any 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Hempseed