Diane Greeley v. Newton, City of - Police Department (SPR 20250942)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2025 SPR25/0937; SPR25/0942 Matthew Tocchio Information Technology Bureau Newton Police Department 1321 Washington Street Newton, MA 02465 Dear Mr. Tocchio: I have received the petition of Diane Greeley appealing the response of the Newton Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR25/0942 On March 10, 2025, Ms. Greeley requested “… the Department’s documentation of progress made towards the achievement of Outcome 6 from the Newton Police Department’s FY2022 and FY2023 Annual Reports.” SPR25/0937 On March 25, 2025, Ms. Greeley reiterated her earlier request, and clarified that responsive records should address the following topics: [1] Community Crisis Intervention Team (CCIT) [2] Mental Health Court Sessions [3] Taking the One Mind Pledge [4] Providing Additional Training for Police Officers in Mental Health Response [5] Providing Mental Health Support to Newton Officers The Department provided responses on March 24, March 25, and April 4, 2025. Unsatisfied with the responses, Ms. Greeley petitioned this office and these appeals, SPR25/0937 and SPR25/0942, were 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

Matthew Tocchio SPR25/0937; SPR25/0942 Page 2 April 14, 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 Department’s Responses In its March 24, 2025 response, the Department informed Ms. Greeley that it would require up to 15 additional business days to respond to her March 10th request. In its March 25, 2025 response, the Department provided Ms. Greeley with copies of its annual reports for the 2022 and 2023 fiscal years, and stated that it considered her March 10th request to be closed. In its April 4, 2025 response, the Department informed Ms. Greeley that it possessed no records responsive to her March 25th request. Current Appeal In her April 6, 2025 petition to this office, Ms. Greeley alleged that the Department has improperly withheld or destroyed responsive records. In a telephone conversation with this office on April 10, 2025, the Department confirmed that it possessed no records responsive to Ms. Greeley’s requests. Specifically, the Department clarified that it possessed records related to mental health generally, but none that document “… progress made towards the achievement of Outcome 6 from the Newton Police Department’s FY2022 and FY2023 Annual Reports.”

Matthew Tocchio SPR25/0937; SPR25/0942 Page 3 April 14, 2025 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). The duty to comply with requests for records extends only 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). Conclusion Given that the Department possesses no records responsive to Ms. Greeley’s requests and this office has no authority to compel the Department to create records, I will now consider these administrative appeals closed. If Ms. Greeley is not satisfied with the resolution of these administrative appeals, 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: Diane Greeley