Robert Jackson v. Tyngsborough, Town of (SPR 20211015)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2021 SPR21/1015 Matthew J. Hanson Town Administrator Town Hall 25 Bryants Lane Tyngsborough, MA 01879 Dear Mr. Hanson: I have received the petition of Robert Jackson appealing the response of the Town of Tyngsborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Jackson requested “copies of all Internal Affairs Investigations of Police Officers that have taken place over the past two (2) years.” The Town provided a response on April 20, 2021, indicating they intend on providing redacted records. Unsatisfied with the Town’s response, Mr. Jackson petitioned this office and SPR21/1015 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(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. The Town’s April 20th response In its April 20th response, the Town indicates “[t]he documents have been gathered and are in the process of being redacted. While the IA reports you requested are typically a public 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

Matthew J. Hanson SPR21/1015 Page 2 May 5, 2021 record, the town does have a need to redact some personally identifiable information such as witness names, dates of birth, and or other similar information. The town is in possession of 8 IA reports.” The Town further indicates “[t]wo reports are in the process of being adjudicated by the appointing authority and will be redacted and released after their adjudication. The redaction on the remaining 5 reports will be complete within 10 business days of today and released to you.” In his appeal, Mr. Jackson states “I am appealing this response because the Internal Police Investigation Reports that I am seeking are public information when the investigation is complete…The Town's Selectmen do not make an Internal Police Investigation public by taking action on it.” Burden of specificity in claiming exemptions The Town’s response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police - - - - Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Town has not met its burden to show how the redacted portions fall within an exemption. The Town is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Conclusion Accordingly, the Town is ordered to provide Mr. Jackson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Jackson