Khalil Wali v. Fitchburg, City of - Police Department (SPR 20252519)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2025 SPR25/2519 Captain Matthew LeMay Technical Services Commander Fitchburg Police Department 20 Elm Street Fitchburg, MA 01420 Dear Captain LeMay: I have received the petition of Layth: bloodline of Hassan (requestor) appealing the response of the Fitchburg 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 August 11, 2025, the requestor sought: [1] All available body-worn camera footage recorded by Fitchburg Police officers present at the public event held on August 5, 2025, from 5:00 PM to 7:00 PM at Lowe Park, Fitchburg, Massachusetts. [2] The duty roster listing all Fitchburg Police Department personnel who attended or were assigned to the August 5, 2025 event at Lowe Park. [3] The Oath of Office documents for [an identified officer]. [4] The Oath of Office documents for [an identified officer]. [5] All internal department policies, directives, or training materials relating to the United States Constitution and constitutional rights, including: a. Guidance on how officers should proceed if a department policy is found to conflict with the U.S. Constitution. b. Protocols or instructions given to officers regarding answering public questions about constitutional rights. The Department responded on August 25, 2025. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR25/2519, 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

Captain Matthew LeMay SPR25/2519 Page 2 September 9, 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 August 25th Response In its August 25, 2025 response, the Department provided two “Fitchburg Police General Orders” and responded to each item of the request as follows: [1] This event was a community event that did not involve calls for service therefore no body camera video was recorded for this event. [2] This event was a community engagement event, our department does not create duty rosters for community events. Therefore there is not obligation for our department to create such record. [3] The oath of office is a verbal oath that is recited, there is no formal document is created other that the appointment letter with name, date and title. Which does not outline the out taken. However, the oath of office language is outlined in Fitchburg Police General Order 112… [4] The oath of office is a verbal oath that is recited, there is no formal document is created other that the appointment letter with name, date and title. Which does not outline the out taken. However, the oath of office language is outlined in Fitchburg Police General Order 112… [5] After review, the Department has determined that your request, as written, is overly broad. Our agency maintains more than 215 policies covering a wide range of operational, administrative, and specialized functions. To fulfill your request as

Captain Matthew LeMay SPR25/2519 Page 3 September 9, 2025 phrased would require the Department to conduct a comprehensive legal review of each individual policy in order to interpret and determine which may, in whole or in part, touch upon or be related to the United States Constitution or constitutional rights. Such an interpretation-based review goes beyond the scope of the Department’s obligations under the Public Records Law. a. Please be advised that the Fitchburg Police Department’s policies are written to comply with the U.S. Constitution and applicable state and federal law. Our policies are not intended to conflict with constitutional requirements. This is outlined in Fitchburg Police General Order 101… b. The department does not maintain a specific written protocol instructing officers on how to answer public questions about constitutional rights. However, our policies do provide general guidance on officer interactions with all members of the public. Officers are expected to: - Treat all individuals with courtesy, professionalism, and respect. - Provide accurate information to the public within the scope of their training and authority. - Uphold the rights guaranteed under the U.S. Constitution and the Massachusetts Declaration of Rights in the course of their duties. - Refer members of the public to appropriate resources when questions extend beyond the officer’s role or expertise. All department policies are written and applied in compliance with the U.S. Constitution, federal law, and state law. Later on August 25, 2025, after the requestor sought clarification of the Department’s response, the Department responded, “[a]t this time, the Department has no further responsive records to provide beyond those identified in our original response.” Current Appeal In the appeal petition, the requestor stated, “[t]he Fitchburg Police Department has now twice denied or dismissed my request: once in its August 25, 2025 formal response, and again later that same day in rejecting my follow-up as yielding ‘no further responsive records.’ This amounts to a constructive denial under M.G.L. c. 66, § 10A.” In a telephone conversation with this office on August 27, 2025 the Department confirmed that it possesses no additional records responsive to Items 1 through 4 of the request and maintained that the scope of Item 5 was overly broad. Items 1, 2, 3, and 4 Regarding Items 1, 2, 3, and 4 of the request, please be advised that under the Public Records Law a custodian is not required to create a record in response to a public records

Captain Matthew LeMay SPR25/2519 Page 4 September 9, 2025 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). Given that the Department has confirmed that it possesses no additional records responsive Items 1, 2, 3, and 4 of the request, and this office has no authority to compel the Department to create records, I find that this portion of the requestor’s appeal is resolved. Item 5 Regarding Item 5, please be aware that the Public Records Law states that a records access officer must furnish a copy of any public record “provided that the request reasonably describes the public record sought.” See G. L. c. 66, § 10(a)(i). In a recent case, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” As such, requests that seek “all records relating to…,” “all records concerning…,” or “all records regarding…” are not sufficiently particular as to satisfy the statutory standard of a request that “reasonably described the public record sought.” See G. L. c. 66, § 10(a)(i). Consistent with the decision in Chawla, I find that the language “all internal department policies, directives, or training materials relating to…” does not satisfy the statutory standard for a request that reasonably describes the public records sought. See Chawla, at 2. The requestor may wish to provide clarification regarding the specific records sought. This office encourages the parties to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce the records sought more efficiently and affordably). If issues remain after further communication, the requestor may file a further appeal. Conclusion Accordingly, I will now consider this administrative appeal closed. If the requestor is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Captain Matthew LeMay SPR25/2519 Page 5 September 9, 2025 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: Layth: bloodline of Hassan