Jeff Raymond v. Arlington, Town of - Police Department (SPR 20231240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2023 SPR23/1240 Suzanne Trunfio Senior Records Clerk Arlington Police Department 112 Mystic Street Arlington, MA 02474 Dear Ms. Trunfio: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Arlington 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. . . . 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

Suzanne Trunfio SPR23/1240 Page 2 June 26, 2023 [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. Previous appeals This request was the subject of previous appeals. See SPR23/0807 Determination of the Supervisor of Records (May 9, 2023) and SPR23/0976 Determination of the Supervisor of Records (May 22, 2023). The Department responded on June 8, 2023. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1240, 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 June 8th Response In its June 8, 2023 response, the Department advised the following: Request Numbers 1, 2 and 5

Suzanne Trunfio SPR23/1240 Page 3 June 26, 2023 The Department stated that the requested records are exempt from disclosure pursuant to Exemptions (d) and (f) of the Public Records Law. Request Number 4 The Department stated that the requested records are exempt from disclosure pursuant to Exemption (f) of the Public Records Law. In a conversation between a Town representative and an attorney of the Public Records Division, the Town advised that with regard to the documents relating to Request number 4, the matter is currently pending in Federal Court before the District of Massachusetts, See Johnson v. Town of Arlington, Docket No. 1:22-cv-11242. The Department also referenced the pending litigation at Suffolk Superior Court Docket Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Docket No.2284CV00906). 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 request 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 the portions of the requests numbered 1, 2 and 5 at this time. See 950 C.M.R. 32.08(2)(b). With respect to records request number 4, these requested records are the subject of a dispute in active litigation as noted above. As such, I decline to opine on this portion of the request at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of these actions could impact the applicability of 950 C.M.R. 32.08(2)(b). Request Numbers 3 and 6 The Department advises that it has no responsive documents. No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the

Suzanne Trunfio SPR23/1240 Page 4 June 26, 2023 possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion The Department has confirmed that it does not possess requested records, and has no duty to create records responsive to requests 3 and 6. I further decline to opine on requests 1, 2, and 5 as they are related to the pending litigation as stated above. Therefore, I will now consider this administrative appeal closed. Mr. Raymond is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond