Thomas M. Kelley v. Bourne, Town of - Police Department (SPR 20242624)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2624 Brandon Esip Chief of Police Town of Bourne 35 Armory Road Bourne, MA 02532 Dear Chief Esip: I have received the petition of Thomas M. Kelley, Esq., of Thomas M. Kelley Law, P.C., appealing the response of the Bourne 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 19, 2024, Attorney Kelley requested “… Department Policy regarding issuance of Retired Police ID/Record of Issuance of ID’s.” The Department provided a response on August 5, 2024. Unsatisfied with the response, Attorney Kelley petitioned this office and this appeal, SPR24/2624, was opened as a result. Status 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 Kelley’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Brandon Esip SPR24/2624 Page 2 September 30, 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. The Department’s August 5th Response In its August 5, 2024 response, the Department provided a copy of its employee identification policy. On the same date, Attorney Kelley inquired whether the Department maintained “… a list of [o]fficers that have been issued their ID cards (both active and retired) …” The Department stated that it did not, and suggested that such a record might be in the possession of “… the Massachusetts Chiefs of Police Association or L-1 Identity Solutions.” Current Appeal In his September 18, 2024 appeal petition, Attorney Kelley asked that this office “… find that the Massachusetts Chief of Police Association and the Bourne Police Department have unlawfully withheld public records.” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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 a September 19, 2024 telephone conversation between the Department and a staff member of the Public Records Division, the Department confirmed that all responsive records in its custody had been provided, and that any remaining records responsive to Attorney Kelley’s request were in the possession of the Massachusetts Chiefs of Police Association (MCOPA). Records in the Possession of the MCOPA The Public Records Law The Public Records Law applies to all records:

Brandon Esip SPR24/2624 Page 3 September 30, 2024 made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32. G. L. c. 4, § 7(26). The Public Records Law therefore applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. Upon review of the Secretary of the Commonwealth’s corporate records, the MCOPA is organized as a nonprofit corporation. Consequently, the MCOPA does not fall within the definition set forth in G. L. c. 4, § 7(26) and is not subject to the Public Records Law. Conclusion Accordingly, where all responsive records in the Department’s custody have been provided, I will now consider this administrative appeal closed. If Attorney Kelley 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: Thomas M. Kelley, Esq.