Anastasia E. Lennon v. New Bedford, City of - Office of The City Solicitor (SPR 20231433)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 6, 2023 SPR23/1433 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Anastasia Lennon, of the New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2023, Ms. Lennon requested, “[a]ll citizen and/or internal complaints or grievances filed with the New Bedford Police Department against [named] Sgt. and any respective internal affairs filings (which are often held in the division of professional standards) related to those complaints. The date range of my request is 03/01/2022 through 03/30/2023.” The City responded on April 14, 2023. Unsatisfied with the response, Ms. Lennon petitioned this office and this appeal, SPR23/1433, 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 or redacted portion of the responsive record. 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

Nicholas DeMarco, Esq. SPR23/1433 Page 2 July 6, 2023 The City’s April 14th Response In its April 14, 2023 response, the City asserted, “[a]fter conducting a search of its departmental database, the Department has verified that it is not in possession of any responsive records matching the specifications given in your March 31st request.” Current appeal In her appeal, Ms. Lennon produced “... an investigative report from the city that referenced two complaints (one characterized as an “informal complaint”) that were filed against the officer ...with the complaints ... in Oct. and Dec. of 2022.” No Duty to Create Records Under the Public Records Law, the City 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). Based upon a conversation between an attorney of the Public Records Division and a City representative, the City confirmed that it has no records responsive to the request. Conclusion Accordingly, where the City has confirmed that it does not possess responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Anastasia Lennon