Charles S. Nierman, Esq. v. Peabody, City of - Police Department (SPR 20201540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 15, 2020 SPR20/1540 Lieutenant Douglas S. Marcus Keeper of Records Town of Peabody Police Department 6 Allen’s Lane Peabody, MA 01960 Dear Lieutenant Marcus: I have received the petition of Charles Scott Nierman, Esq. appealing the response of Town of Peabody Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Attorney Nierman requested records pertaining to two identified Department officers, specifically: 1. Any awards and/or commendations that the aforementioned officers have received during their employment with the [Department]; 2. All Use of Force reports filed by either of the aforementioned officers between January 1, 2015 and the present date [August 13, 2020 request]; 3. The nature of any charges against any of the aforementioned officers in any ongoing Internal Affairs investigations; 4. The results of any completed Internal Affairs investigation involving any of the aforementioned officers; 5. Any and all complaints filed or received by civilians, co-workers and/or superiors against the aforementioned officers; 6. The results of any completed Internal Affairs investigation into such complaints, and any and all sanctions imposed against the aforementioned officers by the [Department]; 7. Copies of any written Use of Force policies of the [Department] between January 1, 2015 and the present; 8. Records of any training the aforementioned officers received on the use of force and the use of OC Spray; 9. The manufacturer and concentrations of capsaicin in the [Department’s] issue OC Spray; and 10. Records of any training the aforementioned officers received regarding the de- escalation of potential incidents. 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

Lieutenant Douglas S. Marcus SPR20/1540 Page 2 September 15, 2020 In its response, the Department asserts, “the request as submitted is being denied due to you having a unique right of access through the Peabody District Court concerning this request.” Unsatisfied with the Department’s denial of access to the requested records, Attorney Nierman petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Nierman states: “[f]irst, [t]here is no evidence that any of the requested documents were not otherwise public records subject to inspection under the Massachusetts Public Records [Law]; nor, do I see anything in the [Law] which would require me to petition the local district court to get the requested records. Second, I have no idea why I would have a unique right to the records through the Court.” Status of the requestor; waiver of fees In his August 13, 2020 request, Attorney Nierman indicates, “[t]his request is made on behalf of my client who has been deemed indigent by the Peabody District Court, and I request that any fees for the foregoing information be waived.” While Attorney Nierman indicated that he made the request on behalf of his client, who is deemed indigent, the Department explained to Attorney Nierman that he may have a unique right of access to the requested records due to his representation of a client. Please note, the Public Records Law does not distinguish between requestors. Access to a record requested 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, both the Department and Attorney Nierman are advised, Attorney Nierman’s status in requesting the records to represent a client will play no role in a determination as to whether the record should be disclosed to the public in its entirety. Attorney Nierman is further advised that a ruling of indigency by a court of law is inapplicable to requests for records made pursuant to the Public Records Law. See G. L. c. 261, § 27A (defining indigency for civil, criminal or juvenile proceedings or appeals in any court); see also G. L. c. 261, § 27B (allowing any party to file with the clerk an affidavit of indigency and a request for a waiver, substitution or payment by the commonwealth of fees and costs upon a form prescribed by the chief justice of the supreme judicial court). The Public Records Law does not provide for an exception when the party requesting the records is indigent. See G. L. c. 66, § 10(a) (every person for whom a search of public records is made shall pay the actual expenses of such search); see also Fierro v. Hiscock, et al., Middlesex -------------------- Superior Court, C.A. No. 96-7243 (1997) (indigent prisoner not entitled to receive records sought pursuant to the Public Records Law free of charge). While a record custodian may waive applicable fees, under the criteria in 950 C.M.R. § 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so.

Lieutenant Douglas S. Marcus SPR20/1540 Page 3 September 15, 2020 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 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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. Burden of specificity; duty to segregate The Department denied Attorney Nierman’s request without claiming any exemption(s) in the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police ------------------------- Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify how many and what type of record(s) it has in its possession and that the Department is withholding. Conclusion Accordingly, the Department is ordered to provide Attorney Nierman with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations

Lieutenant Douglas S. Marcus SPR20/1540 Page 4 September 15, 2020 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 this response to this office at pre@sec.state.ma.us. Attorney Nierman may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Charles Scott Nierman, Esq.