David Rigby v. Lexington, Town of - Police Department (SPR 20231718)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 7, 2023 SPR23/1718 Chief Michael A. McLean Chief of Police Lexington Police Department 173 Bedford Street Lexington, MA 02420 Dear Chief McLean: I have received the petition of David Rigby appealing the response of the Lexington 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 June 2, 2023, Mr. Rigby requested a copy of a specific police report. The Department provided a response on June 5, 2023. Unsatisfied with the response, Mr. Rigby petitioned this office and this appeal, SPR23/1718, 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. The Department’s June 5th response In its June 5, 2023 response, the Department stated that “[t]his type of incident is exempt from Public Records Law. The Lexington Police Department will not be releasing it to the 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

Chief Michael A. McLean SPR23/1718 Page 2 August 7, 2023 public.” The Department’s response did not contain the specificity required in a denial of access to public records. The Department did not specify under what exemption of the Public Records Law it intends to withhold the requested record. 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. As a result, I find that the Department did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Mr. Rigby with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Mr. Rigby may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Rigby