Karen D. Kelly v. Weston, Town of - Office of the Town Manager (SPR 20212252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2021 SPR21/2252 Leon Gaumond Town Manager Town of Weston 11 Town House Road PO Box 378 Weston, MA 02493 Dear Mr. Gaumond: I have received the petition of Karen Discipio Kelly, on behalf of Mary Ellen Sikes, appealing the response of the Town of Weston (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2021, Ms. Sikes requested “access to and a copy of Number of complaints, internal and external, against Weston Police in general, or against individual officers, received between July 22, 2019 and June 14, 2021. Copy of these unredacted complaints except where redactions are required by law.” Previous Appeals This request was the subject of previous appeals. See SPR21/1972 Supervisor of Records Determination (August 4, 2021); SPR21/2052 Supervisor of Records Determination (August 25, 2021). In my August 25th determination, I closed SPR21/2052 in light of the Town providing a written response on August 24, 2021. In its August 24th response, the Town notes that it has previously provided numerous responsive records to Ms. Sikes, and states that others are being withheld pursuant to Exemptions (c) and (f) of the Public Records Law. Unsatisfied with the Town’s response, Ms. Kelly petitioned this office on behalf of Ms. Sikes, and this case 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 agency or 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

Leon Gaumond SPR21/2252 Page 2 September 16, 2021 municipality 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. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Following a phone conversation between this office and the Town on September 16, 2021, I learned that the records that are the subject of this appeal are at issue in pending litigation. This office has reviewed the trial court’s docket and verified that civil litigation relating to the records at issue in this appeal is ongoing in the Massachusetts Probate and Family Court. See Karen Kelly v. Thomas Kelly, (Probate and Family Court Docket No. M19D3693DR). Conclusion In light of the ongoing litigation, I decline to opine on this matter. See 950 CMR 32.08(2)(b). Accordingly, I will consider this administrative appeal closed. If Ms. Kelly is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Karen Discipio Kelly