David A. Russcol v. Chatham, Town of - Police Department (SPR 20220838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 19, 2022 SPR22/0838 Chief Mark Pawlina Chief of Police Chatham Police Department 249 George Ryder Road Chatham, MA 02633 Dear Chief Pawlina: I have received the petition of Attorney David Russcol appealing the response of the Chatham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 20, 2022, Attorney Russcol requested: 1. All text messages or other electronic chat messages between [a certain individual] and [another individual] accessible to the Town, from April 1, 2021, to the present [and] 2. All text messages or other electronic chat messages on [an individual]’s official mobile phone containing any of the terms “Byers”, “animal control officer”, or “ACO,” from April 1, 2021, to the present. Further, on February 25, 2022, Attorney Russcol requested: All text messages between [certain individuals] on a mobile device assigned to either [of the individuals] that is owned or maintained by the Town of Chatham or Chatham Police Department, from April 1, 2021, to the present. The Department provided a response to Attorney Russcol’s January 20, 2022 request on February 22, 2022. Unsatisfied with the Department’s February 22, 2022 response and claiming not to have received a response to his February 25th request, Attorney Russcol petitioned this office and this appeal, SPR22/0838, was opened as a result. 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

Chief Mark Pawlina SPR22/0838 Page 2 April 19, 2022 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 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 February 22nd Response On February 22, 2022, the Department stated: We are presently in the process of reviewing databases within the Town’s control, identifying, and assembling any such records in the Town’s possession. Due to the nature of such records such tasks will require more than the standard ten business day period for production due to not all of the records being easily accessible. We anticipate that said record review and assembly will be completed within 30 days, whereupon a more detailed response, including copies of all responsive records identified, will be provided. Based on the Department’s response, it is unclear if it possesses records responsive to the above requests. Specifically, the Department must clarify whether it possesses the communications from Attorney Russcol’s January 20th and February 25th requests. 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 Accordingly, the Department is ordered to provide Attorney Russcol 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

Chief Mark Pawlina SPR22/0838 Page 3 April 19, 2022 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: Attorney David Russcol