David Meade v. Boxborough-Town of - Police Department (SPR 20190584)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2019 SPR19/0584 Lt. Warren O'Brien Boxborough Police Department 520 Massachusetts A venue Boxborough, MA 01719 Dear Lt. O'Brien: I have received the petition of Mr. David Meade appealing the response of the Boxborough Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Meade requested "selected portions ... of every traffic citation issued by the Boxborough police department between January 1, 2017 and November 30, 2018." 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, § lOA(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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Lt. Warren O'Brien SPR19/0584 Page 2 April 1, 2019 Appeal The Department responded to Mr. Meade on February 7, 2019 by asserting that "this request is not a request for public records pursuant to 950 CMR 32.06(g) due to the ongoing litigation matter pending in Ayer District Court, Application for a Criminal Complaint, Mark C. Harper, in which CPCS [Mr. Meade's employer], as you know, represents the accused Mr. Harper." The Department further argued that "given the ongoing criminal and civil litigation between Mr. Harper, whom [Mr. Meade] represent[s] in the ongoing criminal matter, and the Boxborough Police Department, [his] request does not compromise a public records request and the Police Department is not obligated to response to the same under the provisions of the Public Records Law. Indeed, ... the provision of records in criminal matters, including third-party discovery, is governed by the Massachusetts Rules of Criminal Procedure, including, but not limited to Rules 14 and 16. This is in addition to any civil discovery Mr. Harper maybe entitled to pursuant to the Federal Rules of Civil Procedure in the pending federal civil litigation, in which the police Department is a party." Mr. Meade responded on February 25th, claiming that the "information requested is a public record and therefore my request is pursuant to M.G.L c.66, §10 and MGL c.4, §7. As such, 950 CMR 32.06(g) does not apply to this request. Neither my officer nor Mark Harper, as an individual citizen, has any unique right of access by statutory, regulatory, judicial or other applicable means to this information. Instead, like any other citizen, we have a general right to this information which is subject to M.G.L. c.66, §10 and MGL c.4, §7. The fact that my office represents Mr. Harper in a criminal matter pending in Ayer District Court does not confer unique access to this information." Pending litigation 950 C.M.R. 32.06(1 )(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. I find it unclear whether Mr. Meade has a unique right of access to any of the responsive records under 950 C.M.R. 32.06(1 )(g). It is also unclear whether the responsive records at issue are "the subjects of disputes in active litigation, administrative hearings or mediation" as

Lt. Warren O'Brien SPR19/0584 Page 3 April 1, 2019 described in 950 C.M.R. 32.08(2)(b) . The Department must provide a supplemental response with additional information regarding these issues. Conclusion Accordingly, the Department is ordered to provide a response to Mr. Meade in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Meade