James P. McKenna, Esq. v. Brockton, City of - Law Department (SPR 20221274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 14, 2022 SPR22/1274 Allison M. Cogliano, Esq. Assistant City Solicitor Brockton City Hall 45 School Street 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 Appeals This request was the subject of previous appeals. See SPR22/0652 Determination of the Supervisor of Records (April 1, 2022); SPR22/0788 Determination of the Supervisor of Records (April 12, 2022). In my April 12th determination, I ordered the City to clarify whether it possesses “reports and correspondence” other than the citation, that are responsive to the request. The City responded on May 2, 2022, providing additional responsive records. Unsatisfied with the City’s response, Attorney McKenna further 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). 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. SPR22/1274 Page 2 June 14, 2022 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. 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. Current Appeal In his appeal petition, Attorney McKenna contends that the City possesses additional records responsive to his request. Specifically, he refers to a September 29, 2021 meeting between two individuals, and specifies that he seeks any report written following that meeting, and other related records. The City’s Response In its May 2, 2022 response, the City provides a call log along with email correspondence responsive to the request. Following further communication with Attorney McKenna, on May 31, 2022, the City reiterates that it “does not possess any additional records responsive to [Attorney McKenna’s] request.” Records in Existence Please be advised 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a phone conversation with this office on June 7, 2022, an attorney for the City reiterated that the City does not possess any additional records responsive to Attorney McKenna’s request. She further explained that she has discussed the matter with the Superintendent of Schools and the Chief of Police, and she confirmed that the City has no record of any report based on the September 29, 2021 meeting. Additionally, she confirmed that the City has no records of how or why the charges against the named individual were dropped. She explained that the Brockton Police Department issued a citation on September 29, 2021, and that the City was not involved with any dropping of charges after that point. Conclusion Where the City has confirmed that it possesses no additional responsive records, I will consider this administrative appeal closed. If Attorney McKenna is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Allison M. Cogliano, Esq. SPR22/1274 Page 3 June 14, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: James P. McKenna, Esq.