Beth R. Myers v. Mansfield, Town of - Police Department (SPR 20221160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2022 SPR22/1160 Matthew Todesco Records Access Officer Mansfield Police Department 500A East Street Mansfield, MA 02048 Dear Mr. Todesco: I have received the petition of Beth Myers, Esq., of Burns & Levinson LLP, appealing the response of the Mansfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 6, 2022, Andrew Gambaccini, Esq., of Reardon, Joyce, & Akerson, P.C., requested two categories of records including: 1. a copy of any and all text messages exchanged between Town Manager . . . and Deputy Chief of Police . . . from October 1, 2020 through the present[.] The Department provided a response on April 20, 2022, including responsive records. Unsatisfied with the Department’ response, Attorney Myers petitioned this office and this appeal, SPR22/1160, 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 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

Matthew Todesco SPR22/1160 Page 2 May 31, 2022 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. Current petition In its April 20, 2022 response, the Department stated, “. . . attached you will find two screenshots showing text messages from Deputy Chief . . . to Town Manager . . .” In her appeal petition, attorney Myers states the following: . . . the Town produced only two “screenshots,” claiming they represented the entirety of existing records responsive to the request. Contrary to the Town’s response, we have reason to believe that there are many more additional documents responsive to the request, which seeks written text message communications between the Town Manager and Deputy Chief of Police, who has been the acting Chief since last summer 2021. These two individuals are in regular, close contact, and have been for at least a period of more than a year and a half. Furthermore, both individuals use Town-supplied devices to conduct both Town and likely personal matters, which are clearly subject to the Commonwealth’s public records law. In light of Attorney Myers’ claim, I find the Department must confirm if it possesses additional records responsive to the request. 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). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Attorney Myers 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.

Matthew Todesco SPR22/1160 Page 3 May 31, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Beth Myers, Esq.