Sinan AbuShanab v. Malden, City of - Police Department (SPR 20242236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2024 SPR24/2236 Lieutenant Scott Carroll Records Access Officer Malden Police Department 800 Eastern Avenue Malden, MA 02148 Dear Lieutenant Carroll: I have received the petition of Sinan AbuShanab appealing the response of the Malden 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 26, 2024, Mr. AbuShanab requested, “body cam footage that relates in any way or shows any portion of or portions relevant [to an identified incident at Malden City Hall] . . . [and] any [footage from] police vehicles or cruisers, any other police cameras on the street, or city hall cameras that pertain to this incident.” The Department responded on July 3, 2024. Unsatisfied with the response, Mr. AbuShanab petitioned this office and this appeal, SPR24/2236, was opened as a result. Purpose of Request; Identity of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. AbuShanab’s purpose in making the request has no bearing on the public status of any existing responsive records. 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 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

Lieutenant Scott Carroll SPR24/2236 Page 2 August 21, 2024 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. Current Appeal In his appeal petition, Mr. AbuShanab contends that the Department “withheld records without a sufficient legal basis” in responding to his request. He further asks that records “related to [the identified incident] be made available.” The Department’s July 3rd Response In its July 3, 2024 response, the Department states, “we received [Mr. AbuShanab’s] request pursuant to the Massachusetts Public Records Law for the following records [related to the identified incident]: [1.] Body-Worn Camera Footage . . .[;] [2.] Police Vehicle Camera Footage . . .[;] [3.] Police Fixed Security Camera Footage . . .[;] [4.] City Hall Camera Footage . . .[.]” Regarding Item 1 of the request, the Department cites Exemption (f) of the Public Records Law to withhold responsive records in their entirety and states, “[t]he records requested contain footage that is evidence in a criminal case at Malden District Court that has not yet been adjudicated.” The Department further explains that it has “consulted with the Middlesex District Attorney’s Office and [believes] that the release of the footage at this time may prematurely disclose the details of the case prior to trial.” The Department further advises that it “does not have possession, custody or control of a portion of the records requested.” Specifically, the Department explains that there are no responsive records in existence for Items 2 and 3 as noted above where the Department’s “police vehicles do not have fixed cameras installed in them” and “[t]here are no functioning police security cameras in the area of [Malden City Hall][.]” Regarding Item 4 of Mr. AbuShanab’s request as named above, the Department indicates that it “has no direct access to or control of Malden City Hall camera system(s).” The Department states that it does not possess records responsive to Item 4 for this reason, but specifies that the responsive records “may be in the possession, custody or control of the . . . City

Lieutenant Scott Carroll SPR24/2236 Page 3 August 21, 2024 of Malden Public Facilities Department” and provides the Facilities Department’s address and phone number. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the criminal litigation, relating to the records that are the subject of Mr. AbuShanab’s request, is active and ongoing in Malden District Court. See Commonwealth vs. Abushanab, Sinan, Malden District Court Docket No. 2450CR001173. Conclusion In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Additionally, I decline to opine on the applicability of Exemption (f) of the Public Records Law to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Sinan AbuShanab