Patrick J. Mason v. Fall River, City of - Police Department (SPR 20230411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 16, 2023 SPR23/0411 Kathleen Medeiros Records Clerk Fall River Police Department 685 Pleasant Street Fall River, MA 02723 Dear Ms. Medeiros: I have received the petition of Patrick J. Mason appealing the response of the Fall River Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 4, 2023, Mr. Mason requested “[a]ll reports, dispatch log entries, 911 calls, photographs and supplementary reports…” involving a specific incident. Previous appeal This request was the subject of a previous appeal. See SPR23/0233 Determination of the Supervisor of Records (February 22, 2023). The Department provided a response on February 14, 2023. Unsatisfied with the response, Mr. Mason petitioned this office and this appeal, SPR23/0411, 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 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

Kathleen Medeiros SPR23/0411 Page 2 March 16, 2023 or redacted portion of the responsive record. The Department’s February 14th response In its February 14, 2023 response, the Department provided Mr. Mason with redacted records. Current appeal In his appeal, Mr. Mason states that “…I received two documents heavily redacted which I have enclosed and no response to my request of the 911 call, photographs and video or additional investigative reports. Based on the Department’s response I am requesting an in- camera review of the redacted documents I received today and additional explanation as to the status of the other items in my original records request of February 6th, 2023.” Based on the Department’s response, it is unclear what exemptions under the Public Records Law it is claiming to redact portions of the records. The Department is advised that 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). Further, in light of Mr. Mason’s claim, it is unclear if the Department possesses additional records responsive to the above request. Specifically, the Department must clarify whether it possesses any 911 calls, photographs, video or additional investigative reports responsive to the request. 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 these matters. Consequently, I find the Department did not meet its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Mr. Mason with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Mr. Mason may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kathleen Medeiros SPR23/0411 Page 3 March 16, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patrick Mason