Scott Kirwan v. Pembroke, Town of - Police Department (SPR 20253299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2025 SPR25/3299 Richard MacDonald Chief of Police Pembroke Police Department 80 Center Street Pembroke, MA 02359 Dear Chief MacDonald: I have received the petition of Scott Kirwan appealing the response of the Pembroke 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 September 19, 2025, Mr. Kirwan requested “… a complete copy of the case’s file … for an incident that happened in the city of Pembroke, MA, dated July 3, 1999, resulting in the death of [an identified individual].” Prior Appeal The requested records were the subject of a prior appeal. See SPR25/3036 Determination of the Supervisor of Records (October 17, 2025). In my October 17th determination, I closed SPR25/3036 in light of the Department providing Mr. Kirwan with a response dated October 10, 2025. Unsatisfied with the Department’s response, Mr. Kirwan petitioned this office and this appeal, SPR25/3299, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response on November 13, 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. 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 Richard Macdonald SPR25/3299 Page 2 November 21, 2025 Att’y 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 October 10th and November 13th Responses On October 10, 2025, the Department provided Mr. Kirwan with responsive records in redacted form, including an arrest report and a police report. Current Appeal In his appeal petition, Mr. Kirwan contends: [1] PPD only provided me with 15 pages of redacted documents disregarding my request for a complete copy of [an identified individual’s] case file. It is impossible that PPD only created 15 pages of documents in a murder case. [2] No written response was made available to notify me that PPD does not intend to permit a copy of the remaining records that PPD is still withholding. I was not provided any information to confirm receipt of the request nor provided the specific reasons for such withholding is based, as well as the exemptions. [3] Further, no itemized good faith estimated fees for the production of said records, nor any statement informing me the right of appeal to the Supervisor of Records. … I am requesting that your office find PPD violated c. 66 § 10(b) and 950 CMR 32.06 for failure to provide a complete copy of the requested documents and for still withholding most of the requested documents. Furthermore, order PPD to (1) provide the remaining withheld documents in their possession based on the [Public Records Law] and (2) provide the remaining withheld documents without any cost based on the RAO’s failure to respond within 10 business days and provide the complete case file. Upon review of the appeal petition, it appears that while Mr. Kirwan claims the Department possesses additional responsive records, he does not object to the redactions made to the records he has already received.

Chief Richard Macdonald SPR25/3299 Page 3 November 21, 2025 No Duty to Create Records 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). Further, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). In its November 13th response, the Department confirmed that “[a]s of today, I have given Mr. Kirwan what we have in our system, which was arrest report 99-115-AR. Redactions to the report are required. In this case, witness personal information was redacted as it is exempt from public records. For the other information that was requested, Mr. Kirwan would need to reach out to the courts and/or DA’s office.” Where the Department has confirmed that it does not possess additional records responsive to Mr. Kirwan’s request, I find that the 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. Kirwan 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. 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: Scott Kirwan