Patrick Hanley, Esq. v. Winchester, Town of - Police Department (SPR 20232392)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2023 SPR23/2392 Daniel J. O’Connell Chief of Police Winchester Police Department 30 Mount Vernon Street Winchester, MA 01890 Dear Chief O’Connell: I have received the petition of Patrick Hanley, Esq., of Butters Brazilian LLP, appealing the response of the Winchester 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 September 13, 2023, Attorney Hanley requested the following records: [1.] [A]ll versions of the following police reports associated with case # 376336 relating to an incident on June 21, 2022 . . . [2.] [O]riginal version of the report, all modified versions of the report, all signed and unsigned versions, all physical and electronic versions of the report. [3.] [T]he logs and metadata associated with the version history of the electronic versions of this report. [4.] [A]ll correspondence within the police department about the incident referenced in the report, including the police response, including emails, text messages, screenshots, photographs, memoranda, including all versions of such documents [5.] [A]ll correspondence between Chief O’Connell and [an identified individual] on devices or accounts owned by the Town of Winchester, including emails, text messages, screenshots, photographs, and memoranda. [6.] [A]ll correspondence between Chief O’Connell and any town employee about the events described in the above-referenced report, including the police response to it. Correspondence includes emails, text messages, screenshots, photographs, 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 Daniel J. O’Connell SPR23/2392 Page 2 October 24, 2023 memoranda, including all versions of such documents [7.] [A]ll written orders (including oral orders that have been memorialized) relating to this incident, including relating to the police response, but not limited to those issued by Chief O’Connell, and those issued or received by [identified officers]. On September 21, 2023, the Department responded and indicated that it was withholding responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Attorney Hanley petitioned this office and this appeal, SPR23/2392, 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 town 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). The Department’s September 21st response In the Department’s September 21, 2023 response, it stated the following: This public records request is being denied in accordance with Exemption A, by statue, as the information in WPD case# 376336 clearly relates to a domestic incident involving household family members one of which is a juvenile. The statu[t]e also exempts associated documents. I believe it is also exempt from public records disclosure under exemption C, personal privacy exemption. Current Appeal In his current appeal, Attorney Hanley claimed that the Department did not meet its burden to withhold all the responsive records.

Chief Daniel J. O’Connell SPR23/2392 Page 3 October 24, 2023 Burden of specificity in claiming exemptions Under 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. The Department’s response did not contain the specificity required in a denial of access to public records. The Department merely cites Exemptions (a) and (c) without any explanation of the applicability of the exemptions to the responsive records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Consequently, I find the Department did not meet its burden of demonstrating how the requested records, in their entirety, are exempt from disclosure. If the Department maintains the records are exempt from public disclosure, it must explain with specificity how the cited exemptions apply to withhold the responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under the cited exemptions. 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); see also 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Department is ordered to provide Attorney Hanley 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. Attorney Hanley 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: Patrick Hanley, Esq.