Todd Wallack v. Weymouth, Town of - Police Department (SPR 20242507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2507 Captain John R. Perchard Executive Officer Weymouth Police Department 140 Winter Street Weymouth, MA 02188 Dear Captain Perchard: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Weymouth 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 July 22, 2024, Mr. Wallack requested the following record: [1] A docket number referenced in a June 11, 2024 letter from [a named individual] to [Mr. Wallack.] [2] An application for a criminal complaint referenced in a June 11, 2024 letter from [a named individual] to [Mr. Wallack.] Prior Appeals The requested records were the subject of prior appeals. See SPR24/1744 Determination of the Supervisor of Records (July 5, 2024) and SPR24/2145 Determination of the Supervisor of Records (August 12, 2024). In my August 12th determination, I found that it was unclear how the requested records, in their entirety, are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. The Department responded on September 4, 2024. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/2507, was 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 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

Captain John R. Perchard SPR24/2507 Page 2 September 19, 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. The Department’s September 4th Response In its September 4, 2024 response, the Department stated that it “is not the custodian of records related to court docket numbers. During a previous communication, we incorrectly referenced being in possession of the criminal complaint as well as the associated docket number. In fact, it is an unofficial record in our possession.” Current appeal In his appeal, Mr. Wallack stated, “[i]f the item sought is a court record that could be obtained from the clerk’s office, it is a public record, and it may be obtained from any other government official who also happens to have a copy of that same public record.” Possession, Custody, or Control The Department is 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). In his July 22nd request, Mr. Wallack requested “an application for a criminal complaint and docket number” and did not specify that the records be official or unofficial. If the Department does possess responsive records, it must either provide the records or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

Captain John R. Perchard SPR24/2507 Page 3 September 19, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. Mr. Wallack may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack