Jeannette Hinkle v. Bourne, Town of - Police Department (SPR 20221458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 7, 2022 SPR22/1458 Paul J. Shastany Interim Director of Police Services Bourne Police Department 35 Armory Road Buzzards Bay, MA 02532 Dear Mr. Shastany: I have received the petition of Jeannette Hinkle of The Cape Cod Times appealing the response of the Bourne Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 16, 2022, Ms. Hinkle requested the following: All information submitted to the state POST Commission related to police misconduct allegations by members of the public or other police officers against members of this department. This information includes, but is not limited to, the name of the officer, the date and nature of the complaint and codes showing the outcome of the investigation. The Department responded on June 21, 2022, providing responsive records in redacted form. Unsatisfied with the Department’s response, Ms. Hinkle appealed, 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 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. Att’y 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 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

Paul J. Shastany SPR22/1458 Page 2 July 7, 2022 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. Please be advised that this office has reviewed the trial court’s docket and verified that civil litigation relating to the records at issue in this appeal is active and ongoing in the Suffolk County Superior Court. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Superior Court Docket No. 2284CV00906). In a letter to this office on June 23, 2022, an attorney for the Massachusetts Peace Officer Standards & Training Commission (Commission) explained that “the parties to the litigation have addressed, and the presiding judge has inquired about, whether certain documentation submitted to the Commission by law enforcement agencies would constitute public records.” The Commission further explained that “the discussion necessarily implicates, and the court may be called upon to decide, larger issues of whether personnel and investigatory records provided to the Commission by law enforcement agencies are subject to production in response to public records requests.” Conclusion In light of the pending litigation, 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 litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeannette Hinkle