Chad Higdon-Topaz v. Williamstown, Town of - Police Department (SPR 20202503)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2020 SPR20/2503 Lt. Michael Ziemba Records Access Officer Williamstown Police Department 31 North Street Williamstown, MA 01267 Dear Lt. Ziemba: I have received the petition of Chad Higdon-Topaz appealing the response of the Williamstown Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 30, 2020, Mr. Higdon-Topaz requested the following records: • “Full police logs, including arrest logs, incident logs, and any other logs kept by the police department, dated from January 1, 2019 to present. • All detailed police reports, including arrest reports, crime reports, incident reports, and any other categories of police reports kept by the police department, dated from January 1, 2019 to present. I request all reports regardless of whether or not action was taken, whether or not investigation was required, whether or not intervention was required, and regardless of who initiated the report and/or investigation. • All internal affairs records from January 1, 2010 to present.” Unsatisfied with the response, Mr. Higdon-Topaz appealed and SPR20/2503 was opened as a result. 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(d)(iv) (written response must “identify any 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. Michael Ziemba SPR20/2503 Page 2 December 30. 2020 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). The Department’s December 16th response The Department, through its counsel Janelle Austin of KP Law, responded on December 16th asserting, “[t]o supplement the Police Department’s prior production of records, please find enclosed police policy responsive to your request. Please be advised, after diligent review, that the police department does not have any internal affairs files responsive to your request.” The Department also stated, “[t]here are files, but the attorney advised they cannot be released per the attached policy.” Despite the Department’s response, it remains unclear if the Department possesses responsive records. See Leeman v. Cote. 21 Mass.L.Rptr. 411, 2006 WL 2661436 (Mass.Sup.Ct. 2006). In Leeman, the Court specifically rejected a police department’s attempt “to distinguish Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003) on the basis of the identity of the applicant for the file and the absence of issues of theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, or harassment.” Id. at 5. The court found that “these considerations may temper the degree of public interest in disclosure of the [records], but they do not qualify the record as a personnel file or personnel information.” Id. The court further stated that “[t]he statutes contain no ‘non-police matter’ exemption.” Id. The Department must clarify whether the responsive records exist. Based upon a conversation between a Public Records Division staff attorney and a Department representative, the Department indicated that they are looking into providing the documents responsive to the first two requests in a scanned format to email to Mr. Higdon-Topaz. Conclusion Accordingly, the Department is ordered to provide Mr. Higdon-Topaz 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, Rebecca S. Murray Supervisor of Records cc: Chad Higdon-Topaz