James P. McKenna, Esq. v. Brockton, City of (SPR 20220788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 12, 2022 SPR22/0788 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton 45 School Street – City Hall Brockton, MA 02301 Dear Attorney Cogliano: I have received the petition of Attorney James P. McKenna appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 18, 2022, Attorney McKenna requested the following: All public records, including all reports and correspondence, concerning the incident on September 29, 2021, in which [a named individual] was given a citation (Citation # 2284087) by a member of the Brockton Police Department. Previous Appeal This request was the subject of a previous appeal. See SPR22/0652 Supervisor of Records Determination (April 1, 2022). In my April 1st determination, I closed SPR22/0652 in light of the City’s March 28, 2022 response. Unsatisfied with the City’s response, Attorney McKenna appealed, and this case 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. 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

Allison M. Cogliano, Esq. SPR22/0788 Page 2 April 12, 2022 Att’y 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 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 City’s March 21st Response In its March 21, 2022 response, the City provides a copy of a responsive citation. In his appeal petition, Attorney McKenna states that the City “did not produce any reports, correspondence or other such materials.” Additionally, he contends that “the City did not assert that any exemptions precluded such production. Rather, on March 28, 2022, the City would produce only a redacted copy of the aforementioned citation.” Please note that 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). Based on the City’s response, it is unclear if the City possesses additional records responsive to Attorney McKenna’s request. Specifically, the City must clarify whether it possesses “reports and correspondence” other than the citation, that are responsive to the request. Conclusion Accordingly, the City is ordered to provide Attorney McKenna with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: James P. McKenna, Esq.