David Meade v. Boxborough-Town of - Police Department (SPR 20190786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 1, 2019 SPR19/0786 Lt. Warren O'Brien Boxborough Police Department 520 Massachusetts A venue Boxborough, MA O1 719 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, § 1O A; 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." 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 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 SPR19/0786 Page 2 May 1, 2019 represents Mr. Harper in a criminal matter pending in Ayer District Court does not confer unique access to this information." Previous Appeals This request is the subject of a previous appeal. See SPR19/0584 Determination of the Supervisor of Records (April 1, 2019). I closed SPR19/0584 by ordering the Department to "provide a supplemental response with additional information regarding" the issues raised in the appeal. On April 10, 2019, the Department provided a supplemental response claiming that "there is ongoing litigation pending in Ayer District Court, Application for a Criminal Complaint, Mark C. Harper, in which CPSC, [Mr. Meade's] organization requesting the documents ... represents the accused, Mr. Harper. Indeed, [Mr. Meade has] asserted to the Public Records Division that [his] office represents Mr. Harper in a criminal matter pending in Ayer District Court. Accordingly, the provision of records in criminal matters, including third;.party discovery and the issuance of subpoenas in a case, is governed by the Massachusetts Rules of Criminal Procedure, including, but not limited to the standards set forth in Rules 14 and 17. The court has jurisdiction over such matters." Unsatisfied with the response, Mr. Meade petitioned this office, and this appeal, SPR19/0786 was opened as a result. 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, § lO(b)(viii); ~ also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Lt. Warren O'Brien SPR19/0786 Page 3 May 1, 2019 Purpose ofr equest,· identity ofr equestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Meade's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). Appeal In his petition, Mr. Meade claimed that "Boxborough Police Chief Warren Ryder's supplemental response does not provide any additional information that suggests that [his] office has a unique right of access to [the] public records request subject to 950 CMR 32.06(1)(g)." Further, Mr. Meade asserts that "the fact that [his] office represents Mark Harper in a pending criminal complaint taken out by the Boxbourgh Police Department does not confer unique access to this information. Furthermore, the ability of any criminal defendant in Massachusetts to file Rule 17 motions asking a judge to order third party records does not confer any type of unique access by my office or Mr. Harper to the public records I have requested. Instead, like any citizen, [Mr. Meade has] a general right to this information which is subject to M.G.L.c. 66, § IOA and M.G.L. c.4, § 7. Moreover, there is no additional information that suggests that the requested public records for all criminal citations issued by the department during a certain period are the subjects of the disputes in litigation, administrative hearings or mediation." Accordingly, based on the information provided by Mr. Meade in his petition, it is unclear how he has a unique right of access to the requested records. 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.

Lt. Warren O'Brien SPR19/0786 Page 4 May 1, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. David Meade