Genevieve DiNatale v. Fitchburg, City of - Police Department (SPR 20221711)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2022 SPR22/1711 Captain Matthew LeMay Technical Services Commander Fitchburg Police Department 20 Elm Street Fitchburg, MA 01420 Dear Captain LeMay: I have received the petition of Genevieve DiNatale, of News Link Live, appealing the response of the Fitchburg Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 11, 2022, Ms. DiNatale requested “all of the court records pertaining to the June 29 arrest of [a named individual]…who was arrested in Fitchburg at [a specified time].” On July 12, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. DiNatale petitioned this office and this appeal, SPR22/1711, 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. 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. 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. 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

Captain Matthew LeMay SPR22/1711 Page 2 August 9, 2022 Pending litigation In a response to this office provided on August 8, 2022, the Department states that: The records…are full police reports that are part of the open investigation needed to process the incident successfully through the Fitchburg District Court….This incident is still open at Fitchburg District Court. The Docket numbers are 2216CR000584A, 2216CR000584B, 2216CR000584C, 2216CR000584D & 2216CR000584E. This incident is still considered to be an open investigation as the case has not [been] adjudicated through the courts. It is my understanding that the requested records are related to the active and ongoing pending litigation. 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Genevieve DiNatale, News Link Live