Dan Glaun v. Springfield, City of (SPR 20170360)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 4, 2017 SPR17/360 Edward M. Pikula, Esq. City Solicitor City of Springfield Law Department 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Pikula: I have received the petition of Dan Glaun of Mass Live appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Glaun requested a copy of the investigation reports of the City's Major Crimes Unit and Internal Affairs Unit regarding an incident on Island Pond Road on April 8, 2015. In its March 17, 2017 response, the City denies the request pursuant to the Open Meeting Law as it operates through Exemption (a) of the Public Records Law. See G. L. c. 30A, §§ 22(f), 21(a)(l); G. L. c. 4, § 7(26)(a). Mr. Glaun appealed this response. Prior appeals The records were the subject of two prior public records appeals and determinations. See SPRl 7/211; SPRl 7/243 Supervisor of Public Records Determinations (February 22, 2017; March 10, 2017). In my March 10th determination, I found that the City's Exemption (a) claim that the Civil Service statute will not allow the City to withhold the responsive records. Whereas the investigations have been completed, I also found that the City had not met its burden of proving that the records may be withheld in their entirety under Exemptions (d) and (f). 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, § 1O A( 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Edward M. Pikula, Esq. SPRl 7/360 Page2 April 4, 2017 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, § lO(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. Exemption (a) ih In its March 1 letter, in response to my March 10th determination, the City states that it may withhold both the Major Crimes Unit and Internal Investigation Unit reports pursuant to the Open Meeting Law as it operates through Exemption (a). Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) The applicable statute claimed by the City to withhold all the responsive investigation reports pursuant to Exemption (a) is the Open Meeting Law, which provides in pertinent part: records of any executive session may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer G. L. C. 39, § 23B The City claims that, "a public body can withhold documents and exhibits used during an executive session for as long as disclosure would harm the lawful purpose for the executive session, and that the executive session was held by the Community Police Hearing Board to discuss complaints or charges brought against an individual." G. L. c. 30A, §§ 21(a)(l), 22(f). I conferred with Jonathan Sclarsic, Director of the Division of Open Government of the Attorney General's Office (AGO), regarding this appeal. Attorney Sclarsic declined to provide an informal opinion given that the AGO is currently reviewing the matter to determine whether a valid Open Meeting Law issue exists. Whereas the interpretation of the Open Meeting Law lies exclusively within the jurisdiction of the AGO, I must decline to opine on the City's claim that the Open Meeting Law applies to withhold the requested records pending the AGO's review. If appropriate, I will opine on this matter upon completion of the AGO's review.

Edward M. Pikula, Esq. SPRl 7/360 Page 3 April 4, 201 7 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Dan Glaun David Lurie, Esq. Jonathan Sclarsic, Esq.