Wheeler Cowperthwaite v. Rockland, Town of - Police Department (SPR 20202107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 10, 2020 SPR20/2107 Lt. Nicholas P. Zeoli Lieutenant of Operations Rockland Police Department 490 Market Street Rockland, MA 02370 Dear Lieutenant Zeoli: I have received a petition on behalf of Wheeler Cowperthwaite, of The Patriot Ledger, appealing a denial of requested records from the Rockland Police Department (Department). G. L. c. 66, § 10(c). Specifically, on June 29, 2020, Mr. Cowperthwaite requested a copy of “1. All use of force policies and procedures. 2. All pursuit policies and procedures. 3. The index of the departments policies and procedures. 4. All training materials maintained, and currently being used, by the department regarding use of force and pursuits.” Unsatisfied with the response, Mr. Cowperthwaite appealed and SPR20/2107 was opened as a result. Public Records Law “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 office of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26) (2000 ed.). There is a presumption that all governmental records are public records. G. L. c. 66, § 10(c) (2000 ed.); 950 C.M.R. 32.08(4). It is the burden of the record custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(c) (2000 ed.); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has burden of establishing applicability of exemption). The Department October 29,2020 response In its October 29th response, the Department indicated that the records were exempt pursuant to G. L. c. 4, § 7(26)(b). 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

Nicholas P. Zeoli SPR20/2107 Page 2 November 10, 2020 Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep't of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------ In its response to Mr. Cowperthwaite, the Department explained, “the records you are requesting fall under the following exemption under the public records law. Public records exemption under M. G. L. c. 4, § 7(26)(b): related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding.” Burden of specificity; segregable portions The statutory exemptions are strictly and narrowly construed. Attorney General v. Assistant Comm’r of the Real Property Dep’t of Boston, 380 Mass. 623, 625 (1980); Attorney General v. Board of Assessors of Woburn, 375 Mass. 430, 432 (1978). Public records, and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a) (2000 ed.); see also Reinstein v. Police ----------------- Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). Pursuant to the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. 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 ...”); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. I find that the Department has not met its burden to withhold responsive records under the exemption described above. In particular, it has not identified which specific records it is

Nicholas P. Zeoli SPR20/2107 Page 3 November 10, 2020 withholding, nor has it provided specific reasons for the applicability of the exemption as required by G. L. c.66, § 10(b)(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Order Accordingly, the Department is ordered provide Mr. Cowperthwaite with a response to the request in a manner consistent with this order, the Public Records Law, its Regulations within ten 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: Wheeler Cowperthwaite