Mass Accountability Network v. Salem, City of - Police Department (SPR 20232989)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 26, 2023 SPR23/2989 Anne Marie Greene Principal Clerk Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of the Massachusetts Accountability Network appealing the response of the Salem 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 25, 2023, the requestor sought, “any bodycam footage from [a named officer], from the incident on December 19th, 2022, that happened around 15:55 on Loring Ave.” The Department provided a response on October 10, 2023. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR23/2989, 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

Ann Marie Greene SPR23/2989 Page 2 December 26, 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 Department’s October 10th Response In its October 10, 2023 response, the Department stated, “[t]his is a duplicate request that was already completed on 1-5-23 and then again on 2-6-23. The information that was provided through the Axion website is the video you were requesting as we confirmed the distribution date through the system.” Current appeal In the appeal, the requestor states, “I made the initial request in January of 2023 and then a follow up request in February of 2023, because I didn’t feel like the request was fulfilled in full. As the footage for [a named officer] started when she was pulling a suspect out of his car with the audio. I made one more request for this footage in October of 2023, to give them one more opportunity to turn over the unedited/redacted footage… Both the crash and the Salem police pulling their guns have been removed from the footage and as I mentioned, the footage starts with the audio, when they are taking the man out of his car.” In light of the claims made by the requestor, it is unclear if the Department possesses additional records that may be responsive 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). To the extent that responsive records exist, I find the Department 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 Department is ordered to provide the requestor 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 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: Massachusetts Accountability Network