Parsa P. Jalili v. Newton, City of - Police Department (SPR 20221987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/1987 Ms. Greta McConnell Newton Police Department Records Department 1321 Washington Street Newton, MA 02465 Dear Ms. McConnell: I have received the petition of Parsa P. Jalili appealing the non-response of the Newton 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 August 10, 2022, Parsa P. Jalili requested: “…all email, written and phone communications between Department Chief John Carmichael and Lieutenant Kevin Rudd regarding citizen complaints on August 9, 2022 and August 10, 2022.” Initially the request was sent to Steven Smith in the City Clerk’s Office, Parsa P. Jalili was advised on August 10, 2022, “…[the Department] handles their own requests. You can request documents in [the Department’s] custody at [a specifically worded internet link] or call (617) 796-2105.” In the petition to this office, Parsa P. Jalili asserts, “on 8/10/2022 we sent the [Department] [a] public records request through [an identified internet link]. However, we have not received confirmation upon receipt.” 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 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

Ms. Greta McConnell SPR22/1987 Page 2 September 13, 2022 order to withhold a requested record. 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…”); 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). While the City Clerk’s Office responded on August 10, 2022 that the records are not in the possession of the City Clerk’s Office, the Department did not respond to the request. The Department must use its superior knowledge of the records, and must respond to the requestor whether the Department is in possession, custody, or control of the requested records. On August 29, 2022, Parsa P. Jilili informed this office that no response has been provided regarding the August 10, 2022 request to the Department. I find that it is unclear whether the Department may be in possession, custody and control of the records requested by Parsa P. Jilili. Order Accordingly, the Department is ordered to provide Parsa P. Jilili with a response to the request 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Parsa P. Jilili