Matthew Duggan v. Longmeadow, Town of - Police Department (SPR 20241925)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2024 SPR24/1925 Carolyn Lee Records Access Officer Longmeadow Police Department 34 Williams Street Longmeadow, MA 01106 Dear Ms. Lee: I have received the petition of Matthew Duggan appealing the response of the Longmeadow 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 June 6, 2024, Mr. Duggan requested the following: [1.] [A] list of all crossing guards employed by the town with their salaries and all documented training that has been completed by each crossing guard[;] [2.] Names of crossing guards assigned to the Longmeadow High School on 5 June 2024[;] [3.] [A] copy of all digital media (pictures or videos) created by the crossing guard stationed at the Longmeadow High school on the morning of 5 June 2024 between 0720 and 0745hrs. . .[;] [4.] A copy of police dispatch logs with appropriate case/incident numbers on 22 May 2024[.] On June 6, 2024, the Department provided a response. Unsatisfied with the Department’s response, Mr. Duggan petitioned this office and this appeal, SPR24/1925, was opened as a result. While this appeal was pending, the Department provided a supplemental response on July 8, 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Carolyn Lee SPR24/1925 Page 2 July 19, 2024 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. The Department’s June 27th Response In its June 27, 2024 response, the Department provides responsive records for Items 1, 2, and 4 of the request and cites Exemptions (a) and (c) of the Public Records Law to redact the responsive records. G. L. c. 4, § 7(26)(a), (c). Regarding Item 3 of the request, the Department indicates that it has no responsive records and states: With respect to your request for digital media (pictures of videos) created by the crossing guard, please be advised that this Department does not have possession, custody or control of the records requested. The mandatory disclosure provision of the Public Records Law only applies to information that is in the custody of the Department at the time the request is received. As a result, there is no obligation for a Department to create a record for a requester to honor a request. . . . As a result, the Department is unable to respond to your request. Current Appeal Based upon a review of the appeal, it appears Mr. Duggan only objects to the Department’s response to Item 3 of the request. In his appeal petition, he asserts: On June 5, 2024, a town employee, who works as a crossing guard, used a personal electronic device to capture picture and/or video evidence of a suspected motor vehicle infraction they were involed [sic] with while on duty. The crossing guard then shared this evidence with the Longmeadow Police Department (Supervisors) to support their claim of the suspected infraction. The Town of Longmeadow provided a response indicating that the town does not have custody of the pictures. The crossing guard is a town employee, and I strongly believe that the pictures are public record. . . . I should note that the Police department confirmed they had seen the pictures when I spoke to them. The Department’s July 8th Supplemental Response In its July 8, 2024 supplemental response, with regard to Item 3 of the request, a representative of the Department advises, “it appears that Mr. Duggan is looking for pictures and/or videos taken by the crossing guard supervisor. Mr. Duggan was denied [responsive records] . . . because we physically do not have them in our custody. The Department

Carolyn Lee SPR24/1925 Page 3 July 19, 2024 representative further explains that “[t]he crossing guard had an issue with a parent and took a photo of the license plate to report the incident to the supervisor. The license plate number was verbally relayed but never printed or forwarded to anyone. As such, I am unable to produce a record of something that is not within the custody of the Longmeadow Police Department.” Please be advised that 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). Additionally, 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). In this case, where the responsive records were created in furtherance of Department business, the Department has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. Conclusion Accordingly, the Department is ordered to provide Mr. Duggan 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. Mr. Duggan may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Matthew Duggan