Jeff Raymond v. Carlisle, Town of - Police Department (SPR 20231004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 26, 2023 SPR23/1004 Chief Kenneth Fong Records Access Officer Carlisle Police Department 41 Lowell Street Carlisle, MA 01741 Dear Chief Fong: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Carlisle Police Department (Department) to his request for public records. See 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 within or 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 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

Chief Kenneth Fong SPR23/1004 Page 2 May 26, 2023 sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, to comply with the ‘2023 POST Commission Disciplinary Records Resubmission’ ... [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 25, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1004, 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 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. The Department’s April 25th Response In its April 25, 2023 response, the Department advised, “...the Department is withholding the records in their entirety pursuant to 950 CMR 32.08(2) as the responsive records in question are the subjects of dispute in active litigation, administrative hearings, or mediation. In support thereof, it is the opinion of the Department that these records relate directly to the matters of Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court Docket no. 2284 CV 00906 and New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court Docket no. 2384 CV 00500. Upon review of the information provided on the Massachusetts Trial Court Electronic Case Access, both of these matters appear to still be open and pending. Also, in withholding these responsive records, the Department is relying upon the following decisions rendered by the Supervisor of Public

Chief Kenneth Fong SPR23/1004 Page 3 May 26, 2023 Records in substantially similar matters: SPR20221301 (June 17, 2022); SPR20221373 (June 29, 2022).” Active 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. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity an exemption which applies. 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 ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); ------------------------------- Flatley, 419 Mass. at 511. Consequently, I find the Department did not meet its burden of specificity to in responding to the records request. 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). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond