William Marshall v. Edgartown, Town of - Police Department (SPR 20231738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2023 SPR23/1738 James Hagerty Town Administrator Town of Edgartown 72 Peases Point Way S Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of William Marshall appealing the response of the Town of Edgartown (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 25, 2023, Mr. Marshall requested, “[a]ll audio/visual recordings (including dispatch calls, police and EMS communications, body-worn and dashcam footage), electronic messages, incident reports, witness statements, investigative reports, medical records and reports, and all other records related to the death of [named individual] on July 23-24, 2023 in the Edgartown Great Pond.” The Town provided responses on July 25, 2023. Unsatisfied with the responses, Mr. Marhsall petitioned this office, and this appeal, SPR23/1738, 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, § l0A(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

William Hagerty SPR23/1738 Page 2 August 8, 2023 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 Town’s July 25th Responses In its initial July 25, 2023 response, the Town stated, “[t]he MA State Police are in charge of the investigation.” Mr. Marhsall sent an additional email that asked, “[i]s it the position of the Edgartown Police Department that it is not in possession of any records responsive to my request?” In response, the Town stated, “[a]s stated before, the MA State Police are in charge of the investigation.” Current appeal In his appeal, Mr. Marshall states, “[the Town’s] response… provides neither an indication as to whether or not EPD is in possession of records pursuant to my request, nor a proper basis for withholding such records, should they exist.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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 on the Town’s responses and Mr. Marshall’s appeal, it is unclear if the Town possesses any records responsive to the request. 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Town must clarify this matter. To the extent that the requested records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Mr. Marshall with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the response must be provided to this office. It is preferable

William Hagerty SPR23/1738 Page 3 August 8, 2023 to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Marshall may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: William Marshall Ken Romero