William Nadworny v. Lynn, City of - Police Department (SPR 20222826)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 21, 2022 SPR22/2826 Lieutenant Paul Carter Records Access Officer Lynn Police Department 300 Washington Street Lynn, MA 01901 Dear Lieutenant Paul Carter: I have received the petition of William J. Nadworny appealing the response of the Lynn 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 November 4, 2022, Mr. Nadworny requested “…any and all report(s), letter(s), opinion(s), note(s), and document(s) and specially letters of opposition to parole maintained under the jurisdiction of the Police Department’s Records’ Department and/or [the Department’s] records archives stored in the files of [an identified person].” In a response by the Department, and received by Mr. Nadworny between November 12 and November 14, 2022, the Department indicated that after a search, no records were found under the [identified person’s] name. As a result, Mr. Nadworny petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Purpose of Request; Identity of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information or records under the Public Records Law than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Nadworny’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 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 Paul Carter SPR22/2826 Page 2 December 21, 2022 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) (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). Current appeal In his appeal petition, Mr. Nadworny states, “[p]rior to the [r]equestor’s July 2021 Parole Hearing…the Chief of the Department, authored a letter in opposition to the [r]equestor’s parole submitted to the Massachusetts Parole Board [Board] to be taken into the Board’s decision- making process in approving or denying parole.” In light of the above, it is unclear whether the Department has in its possession the above specified letter. 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). The Department must clarify whether any requested records exist and are in the possession of the Department. Conclusion Accordingly, the Department is ordered to provide Mr. Nadworny with a response to his 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: William Nadworny