Jason Graziadei v. Nantucket, Town of - Police Department (SPR 20231197)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 20, 2023 SPR23/1197 Marina Dzvonik Records Access Officer Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554-2804 Dear Ms. Dzvonik: I have received the petition of Jason Graziadei, of The Inquirer and Mirror, appealing the response of the Nantucket 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 May 31, 2023, Mr. Graziadei requested “…all records, all reports, and photographs in possession of the [Department] related to the following case noted in the public log on 5/30/23: 14:20 [at an identified address] Arrest – Adult Disturbance – (not noise) (not domestic) (DIS).” On June 5, 2023, the Department provided a response asserting, “[t]his matter is pending in court. No records are available for release from [the Department].” As a result of the June 5th response, Mr. Graziadei petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Graziadei states, “…I am appealing the denial of a public records request submitted to the [Department] for a police report on an incident that happened on May 30 … I do not believe that is a valid reason for withholding these records.” 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). 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

Marina Dzvonik SPR23/1197 Page 2 June 20, 2023 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). 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. Burden of specificity; segregable portions The Department has not met its burden of specificity in responding to the request or in withholding requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear what records, categories of records or portions of records the Department has in its possession that are responsive to the request and that the Department intends to withhold from disclosure. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Although the Department’s initial response on June 5, 2023 states that the underlying matter is pending in court, no detailed information was provided. The Department must identify the records it has in its possession that is withholding, and the specific reasons for such withholding. On June 16, 2023, Deputy Chief Charles Gibson indicated to a senior attorney in this office that a further response by the Department will be forthcoming. Conclusion Accordingly, the Department is ordered to provide Mr. Graziadei 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. Mr. Graziadei may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Marina Dzvonik SPR23/1197 Page 3 June 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jason Graziadei