David Jeswald v. Abington, Town of - Police Department (SPR 20230167)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2023 SPR23/0167 David N. Del Papa Chief of Police Abington Police Department 215 Central Street Abington, MA 02351 Dear Chief Del Papa: I have received the petition of David Jeswald appealing the response of the Abington Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 16, 2022, Mr. Jeswald requested numerous records regarding an alleged incident that occurred sometime between December 25, 2022, and December 28, 2022. On January 3, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Jeswald petitioned this office and this appeal, SPR23/0167, 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. The Department’s January 3rd response In its January 3, 2023 response, the Department indicated that it had no 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

David N. Del Papa SPR23/0167 Page 2 February 9, 2023 responsive to the request. Current Appeal In his current appeal, Mr. Jeswald suggested that the Department possesses records responsive to his request. In a conversation between a Department representative and a staff attorney in this office, the Department representative confirmed that the Department does not possess any records responsive to Mr. Jeswald’s request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). Where the Department has confirmed that it has no responsive records in its possession, I find that Mr. Jeswald’s appeal regarding the December 16th request is resolved. Conclusion Where the Department does not possess any records responsive to Mr. Jeswald’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Jeswald is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: David Jeswald