Valentino, Gianna v. Saugus, Town of - Police Department (SPR 20260961)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2026 SPR26/0961 Alisa McCarthy Records Access Officer Saugus Police Department 27 Hamilton Street Saugus, MA 01906 Dear Ms. McCarthy: I have received the petition of Gianna Valentino appealing the response of the Saugus 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 March 5, 2026, Ms. Valentino requested “[a]ll telephone texts between police officer employees regarding the death of [an identified individual] on December 16. the date of the collection would start on December 16 and would end [March 17, 2026]. this would be texts generated by police employees, irregardless of the recipient. this would also include texts, sent to police employees from any individual. [sic]” The Department responded on March 16, 2026, and assigned reference number 2026- 0176 to this request. Unsatisfied with the Department’s response, Ms. Valentino petitioned this office and this appeal, SPR26/0961, 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 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

Alisa McCarthy SPR26/0961 Page 2 March 31, 2026 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 March 16th Response On March 16, 2026, the Department stated, “[u]nder the Massachusetts Public Records Law, G.L. c. 66, §10 and G.L. c. 4, §7, cl. 26, only records that are made or received by a public employee and maintained by the agency in the course of official business are considered public records subject to disclosure. Text messages contained on officers’ personally owned cellular telephones, which are not maintained by the Department and are not in the Department’s custody or control, are not records of the Department for purposes of the Public Records Law.” Current Appeal In her appeal petition, Ms. Valentino contends, “[t]he Department stated that text messages between police officers, regarding an incident that happened where the police department responded and investigated, are not records that can be obtained if the texts were on cell phones that were personally owned. I am challenging that assertion and I am appealing that argument. If employed officers text each other regarding an incident that was being investigated by the department, therefore those texts become official official records of the department. [sic]” Possession, Custody, or Control: Duty to Demand The Department is 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, 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). Additionally, where some of the responsive records may have been created on personal devices, please note that the Department has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. Where Ms. Valentino requested “[a]ll telephone texts between police officer employees regarding the death of [an identified individual]” and the Department’s March 16th response stated that “[t]ext messages contained on officers’ personally owned cellular telephones, which are not maintained by the Department and are not in the Department’s custody or control, are not records of the Department[,]” it is unclear whether the Department currently possesses records that are responsive to Ms. Valentino’s request. The Department must clarify this.

Alisa McCarthy SPR26/0961 Page 3 March 31, 2026 Conclusion Accordingly, the Department is ordered to provide Ms. Valentino with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Valentino may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Gianna Valentino