Sean Hempseed v. Brockton, City of - Police Department (SPR 20221734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2022 SPR22/1734 Sergeant Scott Besarick Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sergeant Besarick: I have received the petition of Sean Hempseed appealing the response of the Brockton Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 27, 2022, Mr. Hempseed requested “…any public records showing any storage fees incurred by the [Department] for the storage of [F]ord [E]xplorer owned by the [Department] that was involved in a crash in May of 2021. The vehicle was towed by Lynch’s [T]owing and was stored at their facility.” The Department responded on July 28, 2022. Unsatisfied with the response, Mr. Hempseed petitioned this office and this appeal, SPR22/1734, 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) (written response must “identify any 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). 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

Sergeant Scott Besarick SPR22/1734 Page 2 August 10, 2022 The Department’s July 28th Response In its July 28, 2022 response, the Department cited Exemption (f) of the Public Records Law and a pending criminal proceeding in Wrentham District Court. 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. In a conversation between a City representative and a senior attorney of the Public Records Division, the City confirmed that the matter is currently pending before the Wrentham District Court. See Commonwealth v. Chief Emanuel Gomes Docket No. 2257CR001000 and that the proceedings are related to the requested records. 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, Manza Arthur Supervisor of Records cc: Sean Hempseed Allison Cogliano, Esq.