John Buchheit v. Cambridge, City of - Police Department (SPR 20221540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records Jul 20, 2022 SPR22/1540 Lieutenant Antonio Ayala Cambridge Police Department 125 Sixth Street Cambridge, MA 02142 Dear Lieutenant Ayala: I have received the petition of John Buchheit appealing the response of the Cambridge Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2022, Mr. Buchheit requested, “[a]ll documents related to [named person], the alleged June 18, 2022 incident, and any other parties alleged to be involved in the incident. Please include all records related to the investigation of this matter and the arrest of [named person].” On July 5, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Buchheit petitioned this office and this appeal, SPR22/1540, 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 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 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

Lieutenant Antonio Ayala SPR22/1540 Page 2 July 20, 2022 custodian must provide the responsive records. The Department’s July 5th response In its July 5, 2022 response, the Department states “[t]hat report is under investigation and not releasable...” Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department’s response did not contain the specificity required in a denial of access to public records. The Department did not identify the records in its possession that it intends to withhold from disclosure. Further, the Department fails to cite any exemption under the Public Records Law that is applicable to withhold the responsive records from disclosure. Further, it is unclear how the records can be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Based on the foregoing, I find the Department has not met its burden to withhold the requested records from disclosure. Conclusion Accordingly, the Department is ordered to provide Mr. Buchheit 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, Manza Arthur Supervisor of Records cc: John Buchheit Seah Levy