Grace Ferguson v. Walpole, Town of - Police Department (SPR 20220818)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 15, 2022 SPR22/0818 Judy Ryan-Decker Walpole Police Department 50 South Street Walpole, MA 02081 Dear Ms. Ryan-Decker: I have received the petition of Grace Ferguson, of WBUR, appealing the response of the Walpole 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 15, 2022, Ms. Ferguson requested: [A] copy of the following records concerning sworn officers of the Walpole Police Department dating back to January 1, 2010: -All internal affairs cases of domestic violence, and -All internal affairs cases of sexual violence, including but not limited to rape and sexual assault. The Department provided responses on March 23, 2022 and April 6, 2022. Unsatisfied with the Department’s responses, Ms. Ferguson petitioned this office and this appeal, SPR22/0818, 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 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

Judy Ryan-Decker SPR22/0818 Page 2 April 15, 2022 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 March 23rd and April 6th responses In its March 23, 2022 response, the Department states “[o]n July 21, 2021, a response was sent to you along with a list of Internal Affairs complaints/investigations against sworn officers of the Walpole Police Department as far back as the current computer system maintains. The nature of the investigations were not included in this list, as our current computer system does not generate that information. Please be advised that the Police Department’s duty to respond to records requests extends only to records that are in existence and in its custody, and the Police Department is under no obligation to create records in response to your request.” The Department explains, “[o]n August 8, 2014, the Governor signed into law Chapter 260 of the Acts of 2014, ‘An Act Relative to Domestic Violence’. Section 7 of Chapter 260 of the Acts of 2014 rewrote G.L. c. 41, § 97D expressly states that all reports and communications between police officers and victims on these types of offenses are not public record and shall be maintained by the police department in a manner to assure their confidentiality. Therefore, regardless of the nature of the investigations, by law, we would withhold any domestic violence information from the list previously sent.” On March 24, 2022, Ms. Ferguson sent an email correspondence to the Department indicating that “[t]his request went beyond a list/index and sought the internal affairs investigation case records. Do you intend to withhold your department’s internal affairs cases of domestic violence and sexual assault in their entirety?” On April 6, 2022, the Department provided its previous March 23rd response. Based on the Department’s response, it is unclear whether it possesses records responsive to the request, particularly, internal affairs investigation case records. 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), (b)(ii); see also G. L. c. 66, § 10(b)(iv) (a 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 . . .”). As such, I find the Department must clarify whether it possesses records responsive to Ms. Ferguson’s request.

Judy Ryan-Decker SPR22/0818 Page 3 April 15, 2022 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