Shawn Wiley v. Danvers, Town of - Police Department (SPR 20250634)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2025 SPR25/0634 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 December 26, 2024, Mr. Wiley requested “…access to and copies of all records, communications, reports, notes or other documents in the possession of the Danvers Police Department that reference or relate to [an identified individual] and his situation during the timeframe of June 15, 2023, to January 31, 2024.” Specifically, Mr. Wiley is seeking: [1] All communications, written or verbal, referencing [an identified individual] between members of the Danvers Police Department (including but not limited to [identified] Officers and [an identified] Officer of the Salem Police Department or other Salem Police Department personnel. This includes any records where information was exchanged or relayed between the two departments regarding [an identified individual] or his situation. [2] Any internal communications within the Danvers Police Department related to [an identified individual] or the relaying of information about him to the Salem Police Department or other external entities. [3] All communications, reports, notes, or correspondence authored, contributed to, or referenced by [identified] Officers that concern [an identified] Officer. This includes communications intended for or involving [an identified] Officer, as well as communications involving any other personnel within the Salem Police Department. 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 SPR25/0634 Page 2 March 20, 2025 [4] Any communications or reports containing allegations, narratives, or claims regarding [an identified individual] provided by the Danvers Police Department to Salem Police Department personnel. This includes but is not limited to emails, text messages, written notes, meeting minutes, and incident reports. [5] Any evidence of coordination, agreements, or discussions regarding decisions, actions, or outcomes related to [an identified individual] between the Danvers Police Department and the Salem Police Department. [6] Any documentation indicating the source, rationale, or context of any information shared about [an identified individual] between departments, including but not limited to call logs, meeting notes, or emails. Previous Appeal This request was the subject of a previous appeal. See SPR25/0508 Determination of the Supervisor of Records (February 24, 2025). In my February 24th determination, I found that it was unclear whether the Department provided a response. Subsequently, the Department responded on February 27, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/0634, 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.

Chief James Lovell SPR25/0634 Page 3 March 20, 2025 The Department’s February 27th Response In a response to Mr. Wiley on February 27, 2025, the Department stated “[t]he Danvers Police Department has no records responsive to your request.” Current Appeal In his appeal petition, Mr. Wiley states, “[d]espite clear and compelling evidence that records do exist, the Danvers Police Department has claimed they have no responsive documents related to communications between their department and [an identified] Officer of the Salem Police Department regarding my case.” Mr. Wiley asserts: If Danvers PD stands by its claim that no records exist, I request a written certification from the department confirming that any communication or exchange of my case details was done off-record and undocumented. 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). Further, 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 an email to this office and Mr. Wiley on March 20, 2025, an attorney for the Department explained that “to confirm, the Danvers Police Department does not possess communications with [an identified] Officer... of the Salem Police Department regarding [Mr. Wiley’s] case.” Where the Department has confirmed that it does not possess responsive records, and the Department has no duty to create records, I find that Department has met its burden in responding to this request under the Public Records Law. Conclusion Accordingly, I will 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Chief James Lovell SPR25/0634 Page 4 March 20, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley