Colman Herman v. Lawrence, City of - Office of the City Clerk (SPR 20240011)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 18, 2024 SPR24/0011 Eileen O’Connor Bernal City Clerk City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Ms. Bernal: I have received the petition of Colman Herman appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 27, 2023, Mr. Herman requested copies of “any and all documents related to the physical and mental requirements for the following: [1] Becoming a Lawrence police officer; and [2] Lawrence police officers on the job.” In an initial response on December 28, 2023, Ms. Bernal informed Mr. Herman that the records requested are not within the possession, custody or control of the records access officer … This request has been forwarded to the [Police Department] … They will respond directly to you…” On January 3, 2024, Ms. Bernal provided a response, included a record responsive to Mr. Herman’s request number 1, and stated, “Lawrence is a Civil Service community, becoming an officer is controlled by the Civil Service rules and regulations.” With regard to Mr. Herman’s request number 2, the City denied this request under Exemption (o) of the Public Records Law. As a result of the City’s January 3rd response to his request number 2, Mr. Herman petitioned the Supervisor of Records, and this appeal was opened. 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 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

Eileen Bernal SPR24/0011 Page 2 January 18, 2024 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. 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 City’s January 3rd response On January 3, 2024, the City provided Mr. Herman with a response and a document responsive to his request for the physical and mental requirements for becoming a City police officer. However, under Exemption (o), the City denied Mr. Herman’s request for the physical and mental requirements for City police officers that are on the job. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). The City is advised that Mr. Herman did not request the home address, personal email address and home telephone number of the City’s police officers; therefore, the request for any record regarding the physical and mental requirements for City police officers that are on the job, if such a record exists, may not be withheld under Exemption (o) of the Public Records Law.

Eileen Bernal SPR24/0011 Page 3 January 18, 2024 Based on the City’s response, it remains unclear if the City is in possession of a record or records responsive to the above request. Specifically, the City must clarify whether it possesses a record or records regarding and physical or mental health requirements for City police officers who are on the job. 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). The City is required to either provide a responsive record, if it exists, or provide Mr. Herman with a response clarifying that the City has no record responsive to the request. Conclusion Accordingly, the City is ordered to provide Mr. Herman with a response to his request number two, 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: Colman Herman