Jeff Raymond v. Harwich, Town of - Police Department (SPR 20231318)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 30, 2023 SPR23/1318 David J. Guillemette Chief of Police Harwich Police Department 183 Sisson Road Harwich, MA 02645 Dear Chief Guillemette: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Harwich 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 May 21, 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

Chief David Guillemette SPR23/1318 Page 2 June 30, 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 June 1, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1318, 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 1st Response In its June 1, 2023 response, the Department states: Based on the Department’s diligent review of your request and its records, there are records responsive to your request, including charts submitted to the POST Commission from the Police Department, as well as communications related to such submissions….

Chief David Guillemette SPR23/1318 Page 3 June 30, 2023 The Harwich Police Department is providing the within charts it submitted to the POST Commission at no charge, as a courtesy, on this occasion only. After an individual assessment of the records, please be advised that personnel information regarding specifically identified individuals contained in the enclosed charts submitted to the POST Commission by the Department has been redacted from the enclosed pursuant to Exemption (c) to the Public Records Law…. In this instance, the Department has carefully considered the application of Exemption (c) to the redacted charts enclosed, to determine whether disclosure of the information that has been redacted or withheld is such that the public’s right to know outweighs any individual officer’s privacy rights, and considered the factors in the PETA case, cited above, including legal matters related to the POST Commission pending in the Massachusetts courts in the matters of Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court, C.A. 2384CV00906 and New England Police Benevolent Association, Inc. and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court, C.A. 2384CV00500. In balancing these interests under PETA, the Department has concluded that it is appropriate to redact certain personnel information from the enclosed charts under Exemption (c) while providing the remaining information requested submitted to POST. Lastly, with respect to the remaining documents identified in your request related to communications between the Department and the POST Commission and/or other municipal administration, the Department has enclosed correspondence with the POST Commission. After reviewing its records, the Department does not have any e-mails with “municipal administration,” as specified in your request, after diligent search. 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 Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Chief David Guillemette SPR23/1318 Page 4 June 30, 2023 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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. Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be redacted pursuant to Exemption (c). 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 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 parts 1, 2 and 5 of this request 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

Chief David Guillemette SPR23/1318 Page 5 June 30, 2023 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