Daniel O'Grady v. Middleborough, Town of - Police Department (SPR 20230654)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 19, 2023 SPR23/0654 Amy Dowler Records Access Officer Middleborough Police Department 350 Wood Street Middleborough, MA 02346 Dear Ms. Dowler: I have received the petition of Daniel O’Grady appealing the response of the Middleborough 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 March 6, 2023, Mr. O’Grady requested: All records, audio and tape recordings, notes, transcripts, emails, police reports, call logs, [text] messages and any and all forms of communications records for April 8th 2020 involving detective . . . [Middleborough] Police Dept. On March 15, 2023, the Department provided a response indicating it does not possess responsive records. As a result of the Department’s response, Mr. O’Grady petitioned the Supervisor of Records, and this appeal was opened. 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) (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 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

Amy Dowler SPR23/0654 Page 2 April 19, 2023 burden of establishing the applicability of an exemption). 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. The Department’s March 15th response In its March 15, 2023 response, the Department states, “…please be advised that this Department does not have possession, custody or control of the records requested. The mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the Department at the time the request is received. As a result, there is no obligation for the Department to create a record for a requestor to honor a request.” Current appeal In his appeal petition, Mr. O’Grady asserts, “[t]he [Department is] claiming in the attached pdf [response] that there is no record of any kind available for this request not even that he showed up for work yet [I] talked to [D]etective . . . at the Department at approx. 10:15 A.M. on April 8th 2020 by phone call that I made to the [Department]. I wish to appeal.” In light of the above, I find the Department must clarify whether it possesses any records 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. O’Grady 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: Daniel O’Grady