John Hilliard v. Metro North Regional Emergency Communication Center (SPR 20231574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1574 Whitney Morgan Executive Director Metro North Regional Emergency Communications Center 400 Revere Beach Pkwy Revere, MA 02151 Dear Whitney Morgan: I have received the petition of John Hilliard, of the Boston Globe, appealing the response of the Metro North Regional Emergency Communications Center (Center) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2023, Mr. Hilliard requested “any reports, recordings of emergency calls or transmissions related to requests for service related to the search for [a named individual] from June 11, 2023 to the present.” The Center responded on June 23, 2023. Unsatisfied with the Center’s response, Mr. Hilliard appealed, and this case 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 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

Whitney Morgan SPR23/1574 Page 2 July 24, 2023 custodian must provide the responsive records. The Center’s June 23rd Response In its June 23, 2023 response, the Center advised Mr. Hilliard to “please forward your request to Massachusetts State Police, this case is still under investigation.” In an email to this office and Mr. Hilliard on July 12, 2023, the Center states that “this incident is still under investigation by Massachusetts State Police. All inquiries must be provided by them.” Possession, Custody, or Control The Center is advised that 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 on the Center’s response, it is unclear whether the Center possesses records responsive to Mr. Hilliard’s request. If the Center does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Center is ordered to provide Mr. Hilliard with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: John Hilliard