David G. Magraw v. Walpole, Town of - Police Department (SPR 20231939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 1, 2023 SPR23/1939 Richard Kelleher Chief of Police Walpole Police Department 50 South Street Walpole, MA 02081 Dear Chief Kelleher: I have received the petition of David Magraw appealing the response of the Walpole 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 July 12, 2023, Mr. Magraw requested “…a complete copy of any documents pertaining to an incident that occurred in Walpole, MA on July 13, 1900. An incident in which [an identified individual] passed away.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1805 Determination of the Supervisor of Records (August 9, 2023). In my August 9th determination, I learned that the Department provided Mr. Magraw with a response. The Department provided a response which was received by Mr. Magraw on July 27, 2023. Unsatisfied with this response, Mr. Magraw petitioned this office and this appeal, SPR23/1939, 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 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 Richard Kelleher SPR23/1939 Page 2 September 1, 2023 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 August 9th Response In its August 9, 2023 response to the Public Records Division, the Department asserted, “[t]he requested documents were sent to Mr. Magraw by WPD certified mail to MCI Norfolk [which were received by Mr. Magraw on July 27, 2023], where the requestor is currently housed. The package included duplicates of what was sent to him back in January which included all documents related to the request within his case file that is in possession of WPD.” Current appeal In his appeal, Mr. Magraw acknowledges receiving a package and states, “...the response was not written, but was a USB drive. Inmates ... are not permitted to possess or have access to USB drives.” The records access officer shall provide the public records to a requestor by electronic means unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in a usable electronic form. See G.L. c. 66, § 6A(d). Accordingly, it is unclear if the Department can provide the records to Mr. Magraw in an accessible format. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Magraw 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 the response to this office at pre@sec.state.ma.us. Mr. Magraw 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 Magraw