Cory Mathieson v. Reading, Town of - Police Department (SPR 20242994)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2024 SPR24/2994 Richard P. Abate Lieutenant Detective Reading Police Department 15 Union Street Reading, MA 01867 Dear Lieutenant Detective Abate: I have received the petition of Cory Mathieson appealing the response of the Reading 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, Mr. Mathieson requested the Department’s lobby videotape from December 14, 2013. The Department responded on August 6, 2024. Unsatisfied with the Department’s response, Mr. Mathieson petitioned this office and this appeal, SPR24/2994, 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 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. 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. 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 Detective Abate SPR24/2994 Page 2 November 13, 2024 The Department’s August 6th Response In its August 6, 2024 response, the Department states, “we have inquired with IT and Facilities, and both confirmed that we no longer have access to this video.” In a telephone call between a staff attorney of the Public Records Division and the Department on November 6, 2024, the Department confirmed that it no longer has these records given the amount of time that has past. 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). Conclusion Where the Department confirmed that it does not possess records responsive to Mr. Mathieson’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Mathieson 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: Cory Mathieson