Daniel Cappetta, Esq. v. Grafton, Town of - Police Department (SPR 20222156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 22, 2022 SPR22/2156 Normand Crepeau Chief of Police Grafton Police Department 28 Providence Road Grafton, MA 01519 Dear Chief Crepeau: I have received the petition of Daniel Cappetta appealing the response of the Grafton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 2, 2022, Attorney Cappetta requested the following: [1] Dates of employment and promotion for [a named individual] currently employed at the Grafton Police Department[.] [2] All reports of misconduct or complaints filed against [a named individual] [3] Any internal investigative reports regarding any complaints against [a named individual] regardless of their outcome. [4] Any investigative report of misconduct by [a named individual] completed by any other organization that is in the possession of the Grafton Police Department. [5] All police reports for any incident where assault and battery on a police officer was charged and [a named individual] was involved in the investigation that led to such charges[.] [6] All police reports for any incident where resisting arrest was charged and [a named individual] was involved in the investigation that led to such charges[.] 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

Normand Crepeau SPR22/2156 Page 2 September 22, 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. The Department’s September 15th response In its September 15, 2022 response, the Department provided a response for item #1 and declined to respond to the other items citing that there is litigation pending and “…it was learned that the records requested are the subject of an active criminal process in the Westborough District Court.” The litigation is known as Commonwealth v. Fitzgibbon, Docket No. 2067CR000948, pending in the Westborough District Court. Upon further discussion with a representative of the Department, it was learned that the requested documents are “potentially subject to the ongoing litigation.” Based on the Department’s response, it is unclear if the requested records relate to the litigation. Specifically, the Department must clarify that the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Conclusion Accordingly, the Department is ordered to provide Attorney Cappetta 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.

Normand Crepeau SPR22/2156 Page 3 September 22, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Daniel Cappetta