Jeff Raymond v. Ashland, Town of - Police Department (SPR 20230864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 11, 2023 SPR23/0864 Michael Herbert Town Manager Town of Ashland 101 Main Street Ashland, MA 01721 Dear Mr. Herbert: I have received the petition of Jeff Raymond appealing the response of the Ashland Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 2023, Mr. Raymond requested the following records: [1.] A copy of the document your police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its ‘database listing complaints against police officers’ planned for May of 2022. [2.] Copies of any relevant responsive communications between a) your police department and/or your town officials and b) the POST Commission in regard to the database planned for May of 2022 as detailed above and/or compliance with the reporting for said database between the dates of July 1, 2021 and December 31, 2022, broadly construed. [3.] Copies of any relevant responsive communications between a) your police department and b) your municipal administration in regard to this database and/or compliance with this mandate between the dates of July 1, 2021 and December 31, 2022, broadly construed. [4.] Information concerning ‘complaints against police officers’ issued in the calendar year 2022 and through March 31, 2023, preferably in the same format used for the information sent to POST between November 2021 and June of 2022 for the earlier- mentioned database. [5.] A copy of the document your police department sent to the POST Commission as sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, 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

Michael Herbert SPR23/0864 Page 2 May 11, 2023 to comply with the ‘2023 POST Commission Disciplinary Records Resubmission found at [hyperlink]. [6.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with the ‘2023 POST Commission Disciplinary Records Resubmission’ described above. The Department responded on April 27, 2023. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/0864, 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. 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 Department’s April 27th response In response to items [1] and [5] of Mr. Raymond’s request, the Department stated the following: Please be advised that the Department is not required to answer questions, do research, or create documents in response to your request. See G.L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The Department’s duty to comply with requests for information extends only to those records that exists and are in the custody of the custodian of records at the time of your request. See. G.L. c. 4, § 7(26). Hence, the Department is not obligated to research records that ‘likely’ exist. In response to items [2], [3] and [6] of Mr. Raymond’s request, the Department stated the following:

Michael Herbert SPR23/0864 Page 3 May 11, 2023 Here, you request records that are ‘relevant,’ but fail to state what said records are relevant to. Please specify the same. In response to item [4] of Mr. Raymond’s request, the Department stated the following: In accordance with G.L. C. 66, § 10(b)(vii), the Department suggests that you modify the scope of your request, as it is considerably broad and unclear as to which specific records you are referring to. Doing so would allow the Department to produce the responsive records more efficiently and more affordably. Records in existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). I find it is unclear whether the records requested exist and are in the Department’s possession. The Department must clarify this issue. I encourage Mr. Raymond and the Department to communicate in order to facilitate producing records efficiently and affordably. Mr. Raymond may wish to narrow the applicable time frame and provide more specificity for item [4] of his request in order to enable the search to be processed. G. L. c. 66, § l0(a)(i). The Department must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Department is ordered to provide Mr. Raymond 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. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Michael Herbert SPR23/0864 Page 4 May 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond