Steven Cote v. Canton, Town of - Police Department (SPR 20240133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR24/0133 Helena Rafferty Deputy Chief Canton Police Department 1492 Washington Street Canton, MA 02021 Dear Deputy Chief Rafferty: I have received the petition of Steven Cote appealing the response of the Canton Police Department (Department) to his request for public records. See G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On December 12, 2023, Mr. Cote requested “[e]mails and Text/phone records of” four named individuals. Prior Appeal This request was the subject of a previous appeal. See SPR23/3074 Determination of the Supervisor of Records (January 3, 2024. In my January 3rd determination, I found that the Department did not meet its burden to withhold the records, in their entirety, under Exemption (f) of the Public Records Law. The Department provided a response on January 10, 2024. Unsatisfied with the Department’s response, Mr. Cote petitioned this office and this appeal, SPR24/0133, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Deputy Chief Helena Rafferty SPR24/0133 Page 2 January 29, 2024 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 Department’s January 10th response In its January 10, 2024 response, the Department provided redacted records and stated, “here is the incident that initiated the investigation into you and your devices as well as emails pertaining to your case.” Current Appeal In his appeal, Mr. Cote states, “I do not think it is sufficient and there are multiple redactions and [the Department] did not provide everything I expected. I asked initially for everything and unredacted and got like maybe half and there are numerous redactions…” Burden of specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the redacted portions of the records are exempt from disclosure under the Public Records Law. It is uncertain what exemption under the Public Records Law the Department is claiming to redact the requested records. 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). Consequently, I find the Department must clarify which exemption it is citing to redact the requested records. Further, based on the Mr. Cote’s petition, it is unclear whether the Department possesses additional records responsive to 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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Cote with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Deputy Chief Helena Rafferty SPR24/0133 Page 3 January 29, 2024 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. Mr. Cote 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: Steven Cote