Jon J. Cubetus v. Lynn, City of - Police Department (SPR 20240200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0200 Paul A. Cotter Administrative Services Records Division Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Cotter: I have received the petition of Jon J. Cubetus, Esq. appealing the response of the Lynn 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 January 22, 2024, Attorney Cubetus requested police reports involving a named individual. The Department provided a response on January 23, 2024. Unsatisfied with the response, Attorney Cubetus petitioned this office and this appeal, SPR24/0200, 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. 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 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

Paul A. Cotter SPR24/0200 Page 2 February 2, 2024 custodian must provide the responsive records. The Department’s January 23rd response In its January 23, 2024 response, the Department cites Exemptions (a), (c), (d), and (f) of the Public Records Law to withhold the requested records. The Department states the following: Please note that certain records or portions thereof are exempt from disclosure under the public records law and those records will be withheld. Examples of exempt records include:  materials pertaining to on-going investigations or prosecutions (G.L. c. 4, § 7(26)(f));  personal identifying information (G.L. c. 4, §7 (26)(c));  grand jury minutes and related materials (G.L. c. 4, § 7 (26)(a) & (f); Mass. R. Crim. P. 5(d));  medical, health, and hospital records (G.L. c. 4, § 7 (26)(c));  autopsy reports (G.L. c. 4, § 7 (26)(a) & (c); G.L. c. 38, § 2);  attorney work product and materials protected by the attorney client privilege (G.L. c. 4 § 7 (26)(d); DaRosa v. City of New Bedford, 471 Mass. 446 (2015); Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass. 444 (2007));  materials pertaining to juvenile delinquency cases (G.L. c. 119, § 60A);  Criminal Offender Record Information (“CORI”) (G.L. c. 4, § 7(26)(a); G.L. c. 6, §§167A, 172);  reports of rape, sexual assault, or domestic violence (G.L. c. 4, § 7(26)(a); G.L. c. 41, § 97D); and personnel files (G.L. c. 4, § 7 (26) (c)) . Burden of specificity; segregable portions The Department has not met its burden of specificity in claiming Exemptions (a), (c), (d), and (f) to withhold the requested records. Pursuant to 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. Further, the Department must identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Although the Department states that the records in its possession should be withheld, it is unclear what record(s) responsive to Attorney Cubetus’ request it is withholding. Therefore, the Department must identify the

Paul A. Cotter SPR24/0200 Page 3 February 2, 2024 record(s) it has in its possession that it withheld under Exemptions (a), (c), (d), and (f), as well as provide specific reasons for such withholding. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Attorney Cubetus 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: Jon J. Cubetus, Esq.