Jeff Raymond v. Fitchburg, City of - Police Department (SPR 20230911)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2023 SPR23/0911 Captain Matthew LeMay Technical Services Commander Fitchburg Police Department 20 Elm St. Fitchburg, MA 01420 Dear Captain LeMay: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Fitchburg Police Department (Department) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On April 20, 2023, Mr. Raymond requested the following records: [1.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following sentences (as they appear in said records, designated with quotation marks (example: "Public Records"), broadly construed. • "the Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2)" • "the responsive records in question are the subjects of dispute in active litigation" • "I support thereof, it is the opinion of the Department" and/or "In support thereof, it is the opinion of the Department" [2.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following Massachusetts court cases, broadly construed. • Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, (also known as Hovsepian, or Hovsepian v. Massachusetts Peace Officer Standards and Training Commission, or Hovsepian v. POST, or similar constructions) Suffolk Superior Court Docket no.2284 CV 00906 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

Captain Matthew LeMay SPR23/0911 Page 2 May 19, 2023 • New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission (also known as MEBPA v. POST or similar constructions), Suffolk Superior Court Docket no. 2384 CV 00500 [3.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following appeal determinations published by the office of the Secretary of the Commonwealth of Massachusetts Public Records Office ("Appeal Determinations"), broadly construed. • SPR20221301 (also known as SPR22/1301) (reconsideration; Lynn, City of – Police Department, Custodian) • SPR20221373 (also known as SPR22/1373) (reconsideration; Massachusetts Peace Officer Standards and Training Commission, Custodian). The Department responded on April 25, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/0911, 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. The Department’s April 25th Response In its April 25, 2023 response, the Department stated that, “[a] data search of our department email system was conducted based on the dates you provided… and provided zero results.”

Captain Matthew LeMay SPR23/0911 Page 3 May 19, 2023 Current appeal In his appeal, the Mr. Raymond states, “I am aware of the email that went around providing the very specific language used, and I know the date in which that email was distributed. As such, that communication should have shown up in your search, and it did not.” 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). It is my understanding the Department confirmed that it has no records responsive to the request. 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. Raymond 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: Jeff Raymond