Grace Ferguson v. Wareham, Town of - Police Department (SPR 20220786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2022 SPR22/0786 Chief John A. Walcek Wareham Police Department 2515 Cranberry Highway Wareham, MA 02571 Dear Chief Walcek: I have received the petition of Grace Ferguson of WBUR appealing the response of the Wareham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2022, Ms. Ferguson requested records concerning “…sworn officers of the Wareham Police Department dating back to January 1, 2010 [including] [a]ll internal affairs cases of domestic violence, and [a]ll internal affairs cases of sexual violence, including but not limited to rape and sexual assault.” The Department responded on March 18, 2022. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR22/0786, 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. 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

Jessica L. Kenny, Esq. SPR22/0774 Page 2 April 12, 2022 The Department’s March 18th response In its response, the Department stated, “[t]he records you are requesting are not public information. They fall under Exemption A.” Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Given the lack of specificity in citing Exemption (a), I find that the Department did not satisfy its burden in responding to this records request. 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 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