Jeff Raymond v. Charlemont, Town of - Town Clerk (SPR 20231046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 1, 2023 SPR23/1046 Kathy Reynolds Records Access Officer Town of Charlemont 157 Main Street Charlemont, MA 01339 Dear Ms. Reynolds: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Charlemont 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 “any responsive documents and/or communications concerning your municipality’s police department and its compliance with the Massachusetts Peace Officer Standards and Training (POST) Commission’s duties under Chapter 253 of the Acts of 2020 to create a ‘database listing complaints against police officers,’ as detailed below.” Specifically, Mr. Raymond requested: [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 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

Kathy Reynolds SPR23/1046 Page 2 June 1, 2023 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, 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 May 2 and May 15, 2023. Unsatisfied with the responses, Mr. Raymond petitioned this office and this appeal, SPR23/1046, 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 May 2nd and May 15th Responses In its May 2, 2023 response, the Department states, “attached are the records from the Town of Charlemont regarding the POST Commission. Please contact the POST Commission if you require further information.” Mr. Raymond, in his appeal, notes that on May 2nd he received a “copy of a letter from the Select Board of Charlemont and one page of the requested Charlemont spreadsheet with all names redacted.”

Kathy Reynolds SPR23/1046 Page 3 June 1, 2023 In its May 15, 2023 response, the Department states: The redacted POSTC Submission is the only document that will be made available in regards to the Public Records Request made. Any follow-up requests pertaining to the same matter will go unanswered as the initial request we are obligated to provide was fulfilled. Please see below referenced MGL Public Records Exemptions and brief explanations to reinforce this decision in order of precedence. G.L. c. 4, § 4, 7(26)(o)—Exemption (o) - The request for all correspondence between POSTC and our designated POST administrator will not be fulfilled due to communications involving personal addresses, personal email addresses, and phone numbers falling under Exemption (o) which would result in the entirety of the document being redacted. G.L. c. 4, § 7(26)(c) – The Privacy Exemption - The request for all documents in addition to communications between POSTC and our designated POST Administrator will not be fulfilled due to communications and documents containing personal information directly related to employment decisions regarding individual employees being exempt pursuant to the first clause of Exemption (c). G.L. c. 4, § 7(26)(d) The Deliberative Process Exemption - All information regarding this records request is exempt from disclosure under Exemption (d) as all materials pertain to legal and policy making matters in relation to the ongoing deliberative process regarding our most recent Police Reform (An Act Relative to Justice, Equity, and Accountability in Law Enforcement in the Commonwealth (Bill S.2963)) as well as The Massachusetts Peace Officers Standards and Training Commission. Current Appeal In his appeal, Mr. Raymond argues, “I do not believe these records meet the cited exemptions allowed by law, nor do all my requested items fall under the cited exemptions in the response.”

Kathy Reynolds SPR23/1046 Page 4 June 1, 2023 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In this case, the Department has not met it burden in responding to Mr. Raymond’s request. Specifically, where the request involves records of investigations into the conduct of police officers, it is unclear how Exemption (c) could apply to withhold or redact any of the requested records. The Department has not shown how the requested records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d).

Kathy Reynolds SPR23/1046 Page 5 June 1, 2023 Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); -se-e -al-so- -E-nv-t-l. -P-ro-t.- A-g-e-n-cy- v-.- M-i-n-k, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Department has not met its burden to withhold the responsive record pursuant to Exemption (d). Although the Department states it may withhold the responsive records under Exemption (d), the Department has not sufficiently explained its reasoning. It is uncertain how this information constitutes inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the Department as required by Exemption (d). Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify this. Exemption (o) Exemption (o) applies to: the home address, personal email address and home telephone number of an employee of the judicial branch, an unelected employee of the general court, an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of a political subdivision thereof or of an authority established by the general court to serve a public purpose, in the custody of a government agency which maintains records identifying persons as falling within those categories; provided that the information may be disclosed to an employee organization under chapter 150E, a nonprofit organization for retired public employees under chapter 180, or a criminal justice agency as defined in section 167 of chapter 6. G. L. c. 4, § 7(26)(o). Although portions of the responsive records may fall within Exemption (o), it is unclear how the responsive records can be withheld in their entirety. Particularly, it is uncertain how non-exempt data is inextricably intertwined with exempt data that records cannot be segregated. See Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Kathy Reynolds SPR23/1046 Page 6 June 1, 2023 Based on the Department’s responses, in conjunction with Mr. Raymond’s appeal, it is unclear if the Department possesses additional records responsive to the request. 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). To the extent that records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). 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. With respect to records requests numbered 1, 2 and 5, these requested records are the subjects of a dispute in active litigation. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Suffolk Superior Court Docket No.2284CV00906). In light of the pending litigation, I decline to opine on records requests numbered 1, 2 and 5 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). 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. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond Sergeant Benjamin Duga