Shawn Wiley v. Danvers, Town of - Police Department (SPR 20250186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2025 SPR25/0186 James Lovell Chief of Police Danvers Police Department 120 Ash Street Danvers, MA 01923 Dear Chief Lovell: I have received the petition of Shawn Wiley appealing the response of the Danvers 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 November 27, 2024, Mr. Wiley requested the following: [A] [C]opies of public records related to calls made to or from the Danvers Police Department on the following dates and times, as referenced in the attached image: 1. May 26, 2023, at 2:02:54 PM 2. June 1, 2023, at 7:08:15 AM 3. July 13, 2023, at 8:55:15 PM 4. July 13, 2023, at 8:59:50 PM 5. July 24, 2023, at 3:23:54 PM 6. July 24, 2023, at 3:26:00 PM 7. July 27, 2023, at 6:39:50 AM 8. July 28, 2023, at 4:10:14 AM 9. July 29, 2023, at 4:22:02 AM 10. July 30, 2023, at 5:27:44 AM 11. July 30, 2023, at 5:34:35 AM 12. July 30, 2023, at 5:34:52 AM[;] [B] [T]he phone record of [an identified individual’s] phone call to [an identified individual] and back to [an identified individual] and his prior call before, June 14th, 15th and 16th[;] [C] [T]he reports when I had come in and stated more charges…[.] 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

Chief James Lovell SPR25/0186 Page 2 February 3, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR24/3459 Determination of the Supervisor of Records (January 8, 2025). In my January 8th determination, I learned that the Department provided a response to Mr. Wiley on January 7, 2025. Unsatisfied with the Department’s response, Mr. Wiley petitioned this office and this appeal, SPR25/0186, 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 custodian must provide the responsive records. The Department’s January 7th Response In its January 7th response, the Department stated, “[i]n response to your request for public records related to calls made to or from the Danvers Police Department, we have located and attached two records. Please note that not all phone lines are recorded, so we were unable to locate most of the calls you requested.” Current appeal In his appeal, Mr. Wiley stated, “[t]he department claims to have provided two call records related to my request. However, these represent only a small fraction of the calls I explicitly requested. The explanation that “not all phone lines are recorded” raises questions about the department’s protocols and their selective approach to accountability.”

Chief James Lovell SPR25/0186 Page 3 February 3, 2025 No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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 telephone call between a staff member of the Public Records Division and the Department on January 28, 2025, the Department confirmed that it provided all records responsive to the request. Conclusion Where the Department provided the records in its possession and confirmed that it does not possess additional records responsive to Mr. Wiley’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Wiley 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: Shawn Wiley