Wheeler Cowperthwaite v. Norwell, Town of - Town Administrator (SPR 20200331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2020 SPR20/0331 Chief Ted Ross Police Chief/ Public Records Access Officer Norwell Police Department 300A Washington Street Norwell, MA 02061 Dear Chief Ross: I have received the petition of Wheeler Cowperthwaite of The Patriot Ledger appealing the response of the Norwell Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Mr. Cowperthwaite requested certain polices and procedures of the Department, specifically: 1) All policies, procedures and directives for complains submitted by the public 2) All internal affairs policies, procedures and directives as well as all internal affairs investigations, polices, procedures and directives. 3) All policies, procedures and directiyes dealing with misconduct and/or allegations of misconduct. 4) The index of Police Department's policies, procedures, and directives. The Department responded to Mr. Cowperthwaite's request on February 5, 2020, stating that records responsive to request #1 do not exist, producing records responsive to request #4, and withholding records responsive to requests #2 and #3 pursuant to Exemption (d) of the Public Records Law. Tlte 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). 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 Ted Ross SPR20/0331 Page 2 March 6, 2020 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 po1iion of the responsive record. G. L. c. 66, § lO(b)(iv). Current Appeal In its February 5111 response, the Department indicates that it is withholding responsive records pursuant to Exemption (d). Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)( d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Only portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. In its response, the Department states that it is unable to release the responsive records because the policies are "currently under review/development." The Department further explains that "[t]he deliberative process has not been completed, and therefore the document(s) are being withheld." In his appeal petition, Mr. Cowperthwaite states that the "Department has conducted at least one, if not two, internal affairs investigations ... which would appear to indicate the depmiment is relying on something to conduct internal affairs investigations." Based on the Department's responses, I find that it has not met its burden to withhold responsive records pursuant to Exemption ( d). In particular, it is unclear whether the responsive documents are "memoranda or letters relating to policy positions" that are in development by the Department, a required by Exemption (d). G. L. c. 4, § 7(26)(d). In light of Mr. Cowperthwaite's

Chief Ted Ross SPR20/0331 Page 3 March 6, 2020 petition, it is additionally unclear whether the Department possesses current or prior versions of the policies that would be responsive to his request. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Cowperthwaite with a response to the request, provided 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, ~ t r ~ Supervisor of Records cc: Wheeler Cowperthwaite, The Patriot Ledger