Todd Wallack v. Weymouth, Town of - Police Department (SPR 20250638)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 19, 2025 SPR25/0638 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. I understand the Town has assigned reference number 25-75 to this request. 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. SPR25/0638 Page 2 March 19, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/0314 Determination of the Supervisor of Records (February 18, 2025). In my February 18th determination, I ordered the Town to clarify whether it possesses records responsive to Items 3, 4, and 5 of the request. Subsequently, the Town responded on February 21, 2025. Unsatisfied with the Town’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/0638, 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 Town’s February 21st Response In its February 21, 2025 response, the Town provides numerous records in redacted form responsive to Item 5 of the request. Current Appeal In his appeal petition, Mr. Wallack argues the following: 1) The agency claims it does not have “a docket number referenced in a June 11, 2024 letter from Police Capt. Perchard to me (Todd Wallack), including any ‘unofficial copies’ of such records.” However, the documents the agency provided on Feb. 21, 2025 contain a docket number. On March 6, 2025 the agency declined to explain the discrepancy and whether the docket number provided on March 6, 2025 is the same one in my request or a different docket number. In addition, the department’s June 11, 2024 letter says the agency provided the docket number to another person. The agency has not explained the discrepancy and whether it

Richard McLeod, Esq. SPR25/0638 Page 3 March 19, 2025 destroyed the record in possible violation of the municipal records retention schedule. My understanding is the municipal records retention schedule requires agencies to retain copies of police records created as part of investigations for seven years. 2) The agency declined to provide a copy of an application for a criminal complaint that it claimed it created in its June 11, 2024 response. The agency has not declined to provide any explanation for why it does not have such a record. [sic] My understanding is the municipal records retention schedule requires agencies to retain copies of police records created as part of investigations for seven years. 3) The agency declined to provide a copy of the department’s letter to a person who filed an internal affairs complaint. The letter was referenced in its June 11, 2024 response and the municipal records retention schedule requires police departments to retain internal affairs files for 11 years. Upon review of the appeal petition, it appears Mr. Wallack does not object to the redactions contained in the records provided to him by the Town. Records in Existence; No Duty to Answer Questions, Conduct Research, Create Documents 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). Additionally, 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). However, 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). As noted in my previous determination, the Town has confirmed that it does not possess records responsive to Items 1 and 2 of the request. See SPR25/0314 Determination of the Supervisor of Records (February 18, 2025). In its February 21st response, the Town states that “the Weymouth Police Department does not have records responsive to items 3 and 4.” Conclusion Where the Town has confirmed that it does not possess additional records responsive to Mr. Wallack’s request, and has no duty to answer questions or create records in response to a request, I will now consider this administrative appeal closed. If Mr. Wallack 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.

Richard McLeod, Esq. SPR25/0638 Page 4 March 19, 2025 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: Todd Wallack