Paul Caruso v. Barnstable, Town of - Police Department (SPR 20240788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2024 SPR24/0788 Danielle Paradis Records Access Officer Barnstable Police Department 1200 Phinneys Lane Hyannis, MA 02601 Dear Ms. Paradis: I have received the petition of Paul Caruso appealing the response of the Barnstable 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 10, 2024, Mr. Caruso requested: [1.] … any logs from the police officers responding to a 911 request to my residence on 2/23/2023[;] [2.] ... any and all emails to and from [an identified officer] and myself between approximately 3/25/2023 and 7/18/2023 containing any and all embedded symbols or emojis [;] [3.] ... any email correspondence between [identified officers] during the period 2/23/2023 and 12/13/2023 regarding my case. The Department provided a response on February 27, 2024. Unsatisfied with the Department’s response, Mr. Caruso petitioned this office and this appeal, SPR24/0788, was opened as a result. Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0415 Determination of the Supervisor of Records (February 23, 2024). In my February 23, 2024 determination, I ordered the Department to identify any records it had in its possession and provide such records to the requestor in a manner consistent with the Public Records Law or identify an exemption that applies to withhold such 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

Danielle Paradis SPR24/0788 Page 2 March 28, 2024 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. See 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 Department’s February 27th response In its February 27, 2024 response, the Department stated, “…please be advised the Department does not have possession, custody, or control of the records requested that contain ‘emoji’s’.” Current Appeal In his March 14, 2024 appeal, Mr. Caruso stated, “I would suggest that since the requested ‘emojis’ have been acknowledged to exist in the past that SPR order that the provided e-mail string be replicated to include said ‘emojis’ to provide the petitioner with the information he has requested to purs[u]e a case in a court of law…” In a phone conversation between the Department and a Public Records Division staff attorney, dated March 20, 2024, the Department confirmed they do not have responsive records in their possession. Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979).

Danielle Paradis SPR24/0788 Page 3 March 28, 2024 The February 27, 2024 response raises concerns regarding records management practices by the Department. Please be aware safeguards must be instituted by the Department to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Conclusion Given that the requested records do not exist and this office has no authority to compel the Department to create records, I will consider this administrative appeal closed. If Mr. Caruso is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Paul Caruso