Daniel O'Grady v. Middleborough, Town of - Police Department (SPR 20230852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2023 SPR23/0852 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 21, 2023, Mr. O’Grady requested any and all emails sent to or received by an identified individual’s email address on April 11, 2020. Previous Appeal This request was the subject of a previous appeal. See SPR23/0597 Determination of the Supervisor of Records (April 12, 2023). In my April 12th determination, I ordered the Department to provide Mr. O’Grady with a response to his request. On April 27, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. O’Grady petitioned this office and this appeal, SPR23/0852, was opened as a result. While this appeal was pending, the Department provided a supplemental response to this office dated May 1, 2023. 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 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 SPR23/0852 Page 2 May 15, 2023 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. The Department’s April 27th Response In its April 27, 2023 response, the Department states, “[t]he Department has made a copy of the recording to comply with the Public Records Request. Please advise as to how you would like to receive this recording, it is available on a flash drive or CD and can be mailed or picked up at the Police Department as your convenience.” In a supplemental response to Mr. O’Grady dated April 28, 2023, the Department states, “[w]e are unable to provide an audio file via email. [A] flash drive will be left at the communications window under you[r] name you will need to sign a receipt when you pick it up.” Current Appeal In his appeal, Mr. O’Grady argues: [1] I should have been able to get this audio file by email but they won’t send the file by electronic means which they easily could have done and are in fact required to by law. [2] They are requiring me to sign for it which is against the Public Records Law[.] [3] I did in fact went up to get the flash drive and got home and it was in completely [blank] nothing was on the flash drive…. In an email to this office dated May 1, 2023, Mr. O’Grady reiterated his arguments made in his appeal. In a supplemental response to this office dated May 1, 2023, the Department states, “Mr. O’Grady has received a second flash drive with the audio call he requested which was verified to be working in my office.” The Department also stated, “[a]s I advised Mr. O’Grady in our email correspondence, the department is unable to provide the audio file electronically.” Preferred Format Regarding the first item in Mr. O’Grady’s appeal, G. L. c. 66, § 6A(d) provides, in pertinent part, that “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.04(5)(d) (“to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in

Amy Dowler SPR23/0852 Page 3 May 15, 2023 electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form[.])” Where the Department has provided the responsive records and has explained that it is unable to provide the responsive records in Mr. O’Grady’s preferred format, I find the Department has met its burden under G. L. c. 66, § 6A(d). Regarding the second item in Mr. O’Grady’s appeal, Mr. O’Grady has not alleged a violation of G. L. c. 66, § 10 by the Department. In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. See G. L. c. 66, § 10A(a). Consequently, the basis of Mr. O’Grady’s appeal is unclear. In regard to the third item of Mr. O’Grady’s appeal, where the Department has indicated it has provided the responsive records in its possession on a second flash drive, the basis of Mr. O’Grady’s appeal is unclear. See G. L. c. 66, § 10(b)(vi). In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. O’Grady 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Daniel O’Grady