Todd Wallack v. Weymouth, Town of - Town Clerk (SPR 20250314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 18, 2025 SPR25/0314 Richard McLeod, Esq. Town Solicitor Town of Weymouth 75 Middle Street Weymouth, MA 02189 Dear Attorney McLeod: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Town of Weymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 6, 2025, Mr. Wallack requested the following: [1] A docket number referenced in a June 11, 2024 letter from Police Capt. Perchard to me (Todd Wallack), including any “unofficial copies” of the records. [2] An application for a criminal complaint referenced in a June 11, 2024 letter from Police Capt. Perchard to me (Todd Wallack), including any “unofficial copies” of the records. [3] A copy of a criminal complaint related to a June 11, 2024 letter from Police Capt. Perchard to me (Todd Wallack), including any “unofficial copies” of the records. [4] A copy of the department’s letter to a person who filed an internal affairs complaint with the Weymouth police department, referenced in a June 11, 2024 letter from Police Capt. Perchard to me (Todd Wallack), including any “unofficial copies” of the records. [5] Copies of any documents provided to the Supervisor of Public Records for an in camera review related to appeal SPR24/2710, including a criminal complaint or any “unofficial copies” of court records. The Town responded on January 21, 2025, and assigned reference number 25-75 to this request. Unsatisfied with the Town’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/0314, was opened as a result. 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

Richard McLeod, Esq. SPR25/0314 Page 2 February 18, 2025 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 Town’s January 21st Response In its January 21, 2025 response, the Town states the following: We do not have the records you requested. We suggest you submit a public records request to the Court. In his appeal petition, Mr. Wallack contends that the Town possess records responsive to each item of his request. 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). Further, 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). Items 1 and 2 Subsequent to the October 10, 2024 determination letter issued regarding SPR24/2710, the Town provided records to this office which were not responsive to Mr. Wallack’s request,

Richard McLeod, Esq. SPR25/0314 Page 3 February 18, 2025 and in a telephone conversation between an attorney of the Public Records Division and the Town, confirmed that it does not possess records responsive to Items 1 and 2 of Mr. Wallack’s request. See SPR24/2710 Determination of the Supervisor of Records (October 10, 2024). Where the Town has previously confirmed that it does not possess records responsive to Items 1 and 2 of the request, and the Town has no duty to create records in response to a public records request, I find that this portion of Mr. Wallack’s appeal is resolved with regard to Items 1 and 2. Items 3, 4 and 5 Regarding Items 3, 4, and 5 of the request, in his appeal petition, Mr. Wallack contends that “I am including a copy of the June 11, 2024 where the town referenced the document, suggesting it has access to the document [sic].” Based on the Town’s response, and the information provided in Mr. Wallack’s appeal petition, it is unclear whether the Town possesses records responsive to Items 3, 4, and 5 of Mr. Wallack’s request. If the Town does possess records responsive to Items 3, 4, and 5, the Town must either provide the records, or 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 Town is ordered to provide Mr. Wallack with a response regarding Items 3, 4, and 5 of 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: Todd Wallack Captain John R. Perchard Marsha Geronaitis