Joseph F. Hennessey v. Worcester, City of (SPR 20241017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/1017; SPR24/1018 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester – Law Department 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petitions of Joseph F. Hennessey, Esq. appealing the responses of the City of Worcester (City) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). In two separate requests dated February 14, 2024, Attorney Hennessey requested the following records: SPR24/1017 [1] [A]ll internal affairs investigations, internal affairs complaints and concise officer histories, to include any and all witness and/or complainant interviews, officer reports, interdepartmental correspondence, including emails, regarding said complaints /investigations and other materials in possession of your internal affairs unit as it pertains to [an identified individual] [and an identified individual] while employed at the Worcester Police Department from 2000 to Present[;] [2] Any and all internal affairs complaints that [an identified individual] and [an identified individual] has filed as the complainant[; and] [3] Any and all police reports where [an identified individual] is listed as a complainant or a suspect in any incident. SPR24/1018 [1] Copy of all records received by BOPS investigators into the complaint filed by [an identified individual] against [an identified individual][;] [2] Copy of all communications including emails, recorded messages, and memorandum between the BOPS investigators and the Town of Sherborn police[;] [3] Copy of all records produced by [an identified individual] in the 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

Janice Thompson, Esq. SPR24/1017; SPR24/1018 Page 2 April 10, 2024 investigation[;] [4] Copy of all records produced by [an identified individual] in the investigation[;] [5] All internal communications between [two identified individuals] and any other Worcester Police official regarding the complaint filed by [an identified individual]. The City responded on March 1, 2024. Unsatisfied with the City’s response, Attorney Hennessey petitioned this office and these appeals, SPR24/1017 and SPR24/1018 were 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 custodian must provide the responsive records. The City’s March 1st responses In its March 1, 2024 responses, the City asserted “the Worcester Police Department has provided responsive records and these are currently being reviewed. The City requires additional time to provide the response. You should expect to receive a complete response within two weeks; however if additional time is required you will be advised.” Current Appeal In his appeal, Attorney Hennessey states, “[o]n March 27, 2024 … I requested an update on these records … but the City has failed to respond.”

Janice Thompson, Esq. SPR24/1017; SPR24/1018 Page 3 April 10, 2024 Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where it appears Attorney Hennessey submitted his requests on February 14, 2024, it is unclear why the City has not provided the responsive records. 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the City is ordered to provide Attorney Hennessey with a response to his requests 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. Attorney Hennessey may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joseph F. Hennessey, Esq.