Edward Ferrante v. Salem, City of - Police Department (SPR 20240790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2024 SPR24/0790 Anne Marie Greene Principal Clerk Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Edward Ferrante, Esq. 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 January 4, 2024, Attorney Ferrante requested, “…any incident report from the Salem Police Department, including from [an identified individual] of sexual conduct for a fee from 3/7/2023 – 9/7/2023.” The Department provided a response on January 4, 2024. Unsatisfied with the Department’s response, Attorney Ferrante petitioned this office and this appeal, SPR24/0790, 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. 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. 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

Anne Marie Greene SPR24/0790 Page 2 March 28, 2024 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 4th Response In its January 4, 2024 response, the Department stated, “[y]our request has been received but unfortunately this is not the correct process to request records of this nature. Defendants (or their attorneys) under adjudication must request records from the District Attorney’s office as part of the discovery process.” Current Appeal In his March 14, 2024 appeal, Attorney Ferrante stated, “[t]his is an administrative appeal…of the failure of the Salem Police Department [SPD] to provide copies of certain records…The Police Department cited no authority to support its assertion that defendants under adjudication cannot request prior records from the police department.” Based on the Department’s response, it is unclear if the Department possesses any 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). However, 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). Consequently, the Department must clarify whether such records exist. To the extent that the requested 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 Attorney Ferrante with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Attorney Ferrante may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Anne Marie Greene SPR24/0790 Page 3 March 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Edward Ferrante, Esq.