Paul Budge v. Lawrence, City of - Police Department (SPR 20242499)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 10, 2024 SPR24/2499 Sergeant Mark Panagiotakos Keeper of Records Lawrence Police Department 90 Lowell Street Lawrence, MA 01840 Dear Sergeant Panagiotakos: I have received the petition of Paul Budge, Esq., of Altman Nussbaum Shunnarah Trial Attorneys, appealing the response of the Lawrence 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 27, 2024, Attorney Budge requested the following: [1.] The Name, Address, and Email address of the individual that is currently the holder of the Liquor License for the Attika Restaurant & Club located at . . . Mill St, Lawrence, MA 01840[;] [2.] All video footage retained by the Lawrence Police officers investigating this incident[;] [3.] All warrants and/or criminal filings relating to charges filed in relation to this incident. The Department responded on August 29, 2024. Unsatisfied with the Department’s response, Attorney Budge petitioned this office and this appeal, SPR24/2499, was opened as a result. While this appeal was pending, the Department provided a supplemental response on September 5, 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). 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

Sergeant Mark Panagiotakos SPR24/2499 Page 2 September 10, 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. 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, Attorney Budge explains that “[t]he motor vehicle accident [his client] was involved in is the subject” of the responsive records. Specifically, he contests, “the Lawrence Police Department Records Division’s position that video compiled . . . while investigating this matter is prohibited from disclosure under the Investigation Exception” and argues, “[Exemption (f)] is not applicable in this case and [his client] is entitled to the materials requested. . . .” 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, Attorney Budge’s purpose in making the request has no bearing on the public status of any existing responsive records. The Department’s Responses In its August 29, 2024 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records in their entirety, and stated that the records are “attached to an open case in the Lawrence District Court and protected from release as materials pertaining to on-going investigations or prosecutions. . . .” In an email to this office and Attorney Budge dated September 5, 2024, the Department advised, “[t]he video requested is associated with Lawrence Police Department log # 23003227 generated on 08/24/2024[.]” The Department further explained, “[d]uring the initial stage of the investigation a criminal complaint for the charge of Assault and Battery with a Dangerous weapon against [an identified individual] . . . has been submitted to the Lawrence District Court and is scheduled for an arraignment on 10/23/2024 (Docket # 2418CR003262A.)”

Sergeant Mark Panagiotakos SPR24/2499 Page 3 September 10, 2024 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. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I therefore 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). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Budge 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Paul Budge, Esq.