Joseph F. Hennessey v. Worcester, City of (SPR 20232444)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2023 SPR23/2444 Janice E. Thompson, Esq. Assistant City Solicitor Law Department City of Worcester 455 Main Street, Suite 309 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Joseph F. Hennessey, Esq. appealing the response of the City of Worcester (City) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2023, Attorney Hennessey requested the following records: [1.] [T]he Worcester Police internal affairs investigation of complaint filed by [a named individual] regarding an incident involving [a named individual] and other officers on or about March 21, 2023. [2.] [C]opy of audio interviews of WPD officers involved in the internal affairs investigation. [3.] [C]opy of all videos obtained in the internal affairs investigation. [4.] All witness reports and interviews conducted in this investigation. [5.] All findings by internal affairs in the complaint against [a named individual] by [a named individual] occurring on March 21, 2023. [6.] All text messages on Department cellphones and private cellphones used by [a named individual] on March 21, 2023 between the hours of 8:30 am to 12 pm. [7.] All internal communications including emails, text messages on Department cellphones, and memorandum between [a named individual] and any officer including superior officers regarding the complaint filed by [a named individual] on [a named individual] on March 21, 2023. 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

Janice E. Thompson, Esq. SPR23/2444 Page 2 October 27, 2023 [8.] All communications between internal affairs investigators, Bureau of Professional Standards and superior officers regarding the complaint filed by [a named individual] on [a named individual] and other officers on March 21, 2023. [9.] All written findings and any disciplinary action taken by the Worcester Police in connection with this complaint. [10.] All interviews conducted by the Worcester Police with [a named individual]. The City provided a response on September 21, 2023. Unsatisfied with the City’s response, Attorney Hennessey petitioned this office and this appeal, SPR23/2444, 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. Current appeal In his appeal, Attorney Hennessey states that “the City of Worcester requested an additional 15 days for [a] response,” but “[i]t is over that time period…yet the City has failed to produce.” The City’s September 21st response In its September 21, 2023 response, the City states that it “…requires more time, up to an additional 15 business days as provided by statute, to complete the work necessary to fulfill this request.”

Janice E. Thompson, Esq. SPR23/2444 Page 3 October 27, 2023 Timeframe for responding to a request G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that ... for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Hennessey’s request was submitted on September 7, 2023, and the City has not provided responsive records, nor cited an exemption for withholding records, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the City must provide an estimated date as to when it intends to complete the search and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Attorney Hennessey 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. Sincerely, Manza Arthur Supervisor of Records cc: Joseph F. Hennessey, Esq.