Todd Wallack v. Natick, Town of (SPR 20220219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 11, 2022 SPR22/0219 Kathleen Lentini Communication/Information Officer Natick Town Hall, 1st Floor 13 East Central Street Natick, MA 01760 Dear Ms. Lentini: I have received the petition of Todd Wallack of WBUR appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 4, 2021, Mr. Wallack requested, “…a copy of any reports that [an identified officer] sexually assaulted a police employee.” On August 10, 2021, Mr. Wallack requested, “[c]opies of any complaints filed in civil lawsuits, demand letters, from attorneys or complaints filed with the Massachusetts Commission Against Discrimination involving the Town of Natick Police Department alleging sexual assault of sexual harassment by an employee in the Natick police department in the last five years.” Prior appeals The requested records were the subject of previous appeals. See SPR21/2247 and SPR21/2250 Determination of the Supervisor (September 15, 2021) and SPR21/2786 Determination of the Supervisor (November 5, 2021). The Town responded on January 14, 2022. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR22/0219, 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 municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Kathleen Lentini SPR22/0219 Page 2 February 11, 2022 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 January 14th response In its January 14th response, the Town asserted, “… the record responsive to this request is related to a matter which is still pending with the Massachusetts Commission Against Discrimination …” Active Administrative Proceeding 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. In a communication between a Town representative and a staff attorney, the Town confirmed that the matter is currently pending before the Massachusetts Commission Against Discrimination. See Charlotte DiClemente v. Town of Natick, James Quilty, Cara Rossi, MCAD Docket No. 20BEM02451. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack