Paul F. Zerola, Esq. v. Revere, City of - Police Department (SPR 20232357)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2023 SPR23/2357 Captain Michelle Mangino Records Access Officer City of Revere – Police Department 400 Revere Beach Parkway Revere, MA 02151 Dear Captain Mangino: I have received the petition of Paul F. Zerola, Esq., of Zerola & Associates, P.C., appealing the response of the Revere 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 August 22, 2023, Attorney Zerola requested the following records pertaining to “an accident between [an operator of a car and a pedestrian 23REV-47582-AC[:]” [1] Any video from any [City] street and pole cameras; [2] Any and all photographs of the incident and or scene; [3] Any and all body worn cameras; [4] All turrent tapes between all officers and dispatch and through the Metro North Regional Emergency Communications Center; [5] All 911 calls to the police regarding this incident and through Metro North Regional Emergency Communications Center; [6] All Police Department CAD reports; [7] Any witness reports or statement; [8] Any police notes regarding this incident; [9] Copy of any citations issued regarding this incident; [10] Any other report or record regarding the above referenced incident location; and, [11] Motor Vehicle Crash Operator Report or Accident Report completed by [an identified person] for this accident. After Attorney Zerola sent a September 8, 2023 email to follow-up on his request, the Department provided Attorney Zerola with a copy of a 911 call transcript and a copy of an Incident Report 23REV-47582-OF. These records were provided in redacted form. 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

Captain Michelle Mangino SPR23/2357 Page 2 October 18, 2023 As a result of receiving the redacted 911 call transcript and incident report, on October 4, 2023, Attorney Zerola petitioned the Supervisor of Records, and this appeal was opened. Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Zerola’s status and that of his client will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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) (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…”); 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). 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. Current Appeal In Attorney Zerola’s petition for this appeal, he asserts, “[w]hile the [Department] supplied a police and incident report, they heavily redacted the same. There is no ongoing investigation, there are no criminal charges, and the matter is closed with the [Department]. Therefore, the [Department] can claim no statutory or other legal exemption to such a heavily redacted report. For example, they redacted my own client’s date of birth and viable, relevant and important witness information. In addition, the [Department] ignored most of the request…”

Captain Michelle Mangino SPR23/2357 Page 3 October 18, 2023 Records in existence 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). In accordance with the Public Records Law, 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). Based on the Department’s response, in conjunction with Attorney Zerola’s petition, it is unclear if the Department possesses additional records responsive to the request. The Department must clarify this matter. Burden of Specificity With its September 8th production of certain responsive records, the Department did not provide a response that specifies the exemptions in the Public Records Law that allow the Department to redact content within those records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how the redacted portions fall within an exemption. As a result, I find the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Department is ordered to provide Attorney Zerola with a response to his request 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. Attorney Zerola may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Captain Michelle Mangino SPR23/2357 Page 4 October 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Paul F. Zerola, Esq.