Sam Giblin v. Ayer, Town of - Police Department (SPR 20243213)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2024 SPR24/3213 Robert Mackie Records Clerk Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Mr. Mackie: I have received the petition of Sam Giblin, appealing the response of the Ayer 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 19, 2024, and November 22, 2024, Mr. Giblin requested copies of recorded interviews conducted on April 20, 2024 and April 23, 2024. The Department provided responses on August 30, 2024, September 3, 2024, and November 25, 2024. Unsatisfied with the Department’s responses, Mr. Giblin petitioned this office and this appeal, SPR24/3213, 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. 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 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

Robert Mackie SPR24/3213 Page 2 December 12, 2024 custodian must provide the responsive records. Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Giblin’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 30, 2024 response, the Department informed Mr. Giblin that it did not possess a responsive recording dated April 20, 2024. The Department further informed Mr. Giblin that it was withholding a responsive recording dated April 23, 2024 under Exemption (f) of the Public Records Law. In its September 3, 2024 response, the Department informed Mr. Giblin that the responsive recording dated April 23, 2024 was no longer in the Department’s custody. In its November 25, 2024 response, the Department confirmed that it had no responsive records in its custody, as “… footage of that day has already been written over.” Current Appeal In his November 27, 2024 petition to this office, Mr. Giblin requested a determination on the issue of whether the Department “… has violated the Massachusetts Records Retention Schedule concerning these records.” Mr. Giblin further stated that he was seeking the responsive recordings for use in an ongoing criminal case. Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. See G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Safeguards must be instituted by the Department to ensure that all records are retained in

Robert Mackie SPR24/3213 Page 3 December 12, 2024 accordance with both applicable law as well as the retention schedules promulgated by this office. See G. L. c. 66, § 8; G. L. c. 66, § 13 and G. L. c. 66, § 15. 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 Given that the requested record no longer exists and this office has no authority to compel the Department to create a record, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Sam Giblin