Tommy D v. Lexington, Town of - Police Department (SPR 20250145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 30, 2025 SPR25/0145 Donna Dutton Administrative Assistant Lexington Police Department Records Division 1575 Massachusetts Avenue Lexington, MA 02420 Dear Ms. Dutton: I have received the petition of “Tommy D” (Requestor) appealing the response of the Lexington 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 December 6, 2024, the requestor sought the following records concerning a specified incident: Are there any other attached records to this incident date? Also how can I get a copy of the dispatch audio for this call when it was dispatched? [sic] The Department responded on December 18 and 19, 2024. Unsatisfied with the Department’s responses, the requestor petitioned this office, and this appeal, SPR25/0145, 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 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

Donna Dutton SPR25/0145 Page 2 January 30, 2025 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, the requestor contends that “i had seek all dispatch audio, any officer communications and incident reports or logs for this date they released the log redacted and won’t release any audio or any officer communications or dispatch which should exist to go with the report [sic].” The Department’s December 18th, and 19th Responses In its December 18, 2024 response, the Department explains the following: [W]e no longer have the 911 recording as we are only required by the Massachusetts Retention Schedule to keep the 911 recordings for a year-so it has been destroyed per the retention period. In its December 19, 2024 response, the Department further states the following: After consulting with the Chief of Police ... and Captain of Operations ... we are going to deny your request for the 911 call and any transmissions from this incident. We will not be releasing anymore information beyond what you have already received. I have attached a copy of the Massachusetts Public Records Law Guide for your records. The Reports have been denied in accordance with: The Massachusetts Public Records Law, Exemption C as the information relates to: Medical Privacy Records in Existence; Possession, Custody, or Control Please be 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5).

Donna Dutton SPR25/0145 Page 3 January 30, 2025 Based on the Department’s December 18th and 19th responses, it is unclear whether the Department possesses records responsive to the request. Specifically, it is unclear whether records existed and were destroyed, or whether the Department is withholding records pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). If the Department does possess responsive records, it must either provide the records, or identify the records and 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”). Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Manza Arthur Supervisor of Records cc: Tommy D