Diana Dority v. Walpole, Town of - Police Department (SPR 20242427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2024 SPR24/2427 Deanna Fruci Civilian Clerk Walpole Police Department 50 South Street Walpole, MA 02081 Dear Ms. Fruci: I have received the petition of Diana Dority appealing the response of the Walpole 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 August 13, 2024, Ms. Dority requested, “a copy of call [a named police officer] called [a named individual]” for an incident that took place on “June 28, 2024 @ [a]pprox 2:00 pm[.]” The Department responded on August 14, 2024. Unsatisfied with the Department’s response, Ms. Dority petitioned this office and this case, SPR24/2427, was opened as a result. While this appeal was pending, the Department provided a supplemental response on August 27, 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. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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

Deanna Fruci SPR24/2427 Page 2 September 9, 2024 The Department’s Responses In its August 14, 2024 response, the Department provided records and cited Exemption (c) of the Public Records Law to redact information. On August 27, 2024, the Department stated, “[o]ur main phone lines in the dispatch center are all recorded, however the phones at individual desks throughout the station are not. After a search of the system for the conversation that [Ms. Dority] is referring to, it appears as though it took place on a line that was not recorded. As such, we do not have any responsive records for this request.” Current Appeal In her appeal, Ms. Dority states, “I requested a FOIA from Walpole PD a telephone conversation that occurred between [a named police officer] and [a named individual] on June 28th at 2:44 pm that consisted for 4 minutes. The Walpole PD response was that it was an unrecorded telephone line. I am appealing as I believe there is exculpatory evidence for me on this phone conversation.” No Duty to Create Records Please be advised, under the Public Records Law the Department is not required to create a record in response to the request. See G. L. c. 66, § 6A(d). 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, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Department does not possess any records responsive to the August 13th request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Dority 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, § 10(b).

Deanna Fruci SPR24/2427 Page 3 September 9, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Diana Dority Chief Richard M. Kelleher