Grace Ferguson v. Watertown, City of - Police Department (SPR 20220263)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 17, 2022 SPR22/0263 Catalina Gonzalez Principal Clerk Watertown Police Department 552 Main Street Watertown, MA 02472 Dear Ms. Gonzalez: I have received the petition of Grace Ferguson appealing the response of the Watertown Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2021, Todd Wallack requested an “[e]lectronic log of internal affairs complaints/investigations against sworn officers of the Watertown Police Department as far back as you maintain the log in your current computer system.” The Department responded on July 12, 2021, indicating it does not possess responsive records. Unsatisfied with the Department’s response, Ms. Fergusson petitioned this office and this appeal, SPR22/0263, 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 agency or municipality 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. If there are any fees associated with a response a written, good faith estimate must be 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

Catalina Gonzalez SPR22/0263 Page 2 February 17, 2022 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 July 12th response In its July 12, 2021 response, the Department states “[a]fter diligent review of the request and the Police Department’s records, the Police Department does not maintain a log with the internal affairs information sought or have the ability to generate such a log or report from its computer databases.” After multiple correspondences from Ms. Ferguson to the Department, inquiring about how the Department keeps track of its internal affairs investigations, the Department resent its July 12th response on February 3, 2022. Although 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, based on the Department’s response, it is unclear if it possesses the requested records in some form. See G. L. c. 66, § 10(a)(ii). The Department must clarify this matter. The parties are encouraged to communicate further to determine whether alternative records may exist. Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Grace Ferguson