Manuel R. Santos v. Brockton, City of - Police Department (SPR 20222878)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2022 SPR22/2878 Sergeant Scott Besarick Records Access Officer Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sergeant Besarick: I have received the petition of Manuel R. Santos appealing the response of the Brockton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2022, Mr. Santos requested various records relating to an incident on November 19, 1996. The Department provided a response on December 2, 2022. Unsatisfied with the response, Mr. Santos petitioned this office and this appeal, SPR22/2878, 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

Sergeant Scott Besarick SPR22/2878 Page 2 December 29, 2022 The Department’s December 2nd Response In its December 2, 2022 response, the Department stated, “[w]e have no responsive records to your request.” Current appeal In his appeal, Mr. Santos states, “…the Brockton Police Department [is] refusing to turn over to me certain files that I am sure that is in their possession… Based upon a conversation between a Public Records Division staff member and a Department representative, the Department confirmed that it has no further records responsive to the request. No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Accordingly, Where the Department has confirmed that it does not possess records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Santos is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Manuel R. Santos