Jeff Raymond v. Groveland, Town of - Police Department (SPR 20231468)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2023 SPR23/1468 Jeffrey J. Gillen Chief of Police Groveland Police Department 181 Main Street Groveland, MA 01834 Dear Chief Gillen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Groveland 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 10, 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 Jeffrey J. Gillen SPR23/1468 Page 2 July 11, 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. On April 13, 2023, Mr. Raymond submitted a second request for the following: [1.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following sentences (as they appear in said records, designated with quotation marks (example: “Public Records”), broadly construed. “the Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2)”; “the responsive records in question are the subjects of dispute in active litigation”; “I support thereof, it is the opinion of the Department” [2.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following Massachusetts court cases, broadly construed. Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, (also known as Hovsepian, or Hovsepian v. Massachusetts Peace Officer Standards and Training Commission, or Hovsepian v. POST, or similar constructions) Suffolk Superior Court Docket no.2284 CV 00906 New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission (also known as MEBPA v. POST or similar constructions), Suffolk Superior Court Docket no. 2384 CV 00500 [3.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following appeal determinations published by the office of the Secretary of the Commonwealth of Massachusetts Public Records Office

Chief Jeffrey J. Gillen SPR23/1468 Page 3 July 11, 2023 (“Appeal Determinations”), broadly construed. SPR20221301 (also known as SPR22/1301) (reconsideration; Lynn, City of - Police Department, Custodian) SPR20221373 (also known as SPR22/1373) (reconsideration; Massachusetts Peace Officer Standards and Training Commission, Custodian)[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR23/1164 Determination of the Supervisor of Records (June 13, 2023). In my June 13th determination, I closed the appeal after the Department indicated that it would provide a further response to Mr. Raymond. On June 14, 2023, the Department responded to the April 10th request and provided responsive records while withholding other responsive records. On June 14, 2023, the Department provided a further response to April 13th request. Unsatisfied with the Department’s response regarding the April 10th request, Mr. Raymond petitioned this office and this appeal, SPR23/1468, 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(d)(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…”); 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). 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 14th response In the Department’s June 14, 2023 response, it indicated that it was withholding records responsive to Items 1, 2, and 5 of the April 10th request. The Department further indicated that it had no records responsive to Item 3 of the April 10th request and provided responsive records for Items 4 and 6 of the request.

Chief Jeffrey J. Gillen SPR23/1468 Page 4 July 11, 2023 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 the requests numbered 1, 2, and 5 at this time. See 950 C.M.R. 32.08(2)(b). Regarding Item 3 of the request, the Department indicated that it had no responsive records. Regarding Items 4 and 6 of the request, the Department indicated that it has produced all the responsive records. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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 possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Where the Department does not possess any additional records responsive to Items 4 and 6, and does not possess any records responsive to Item 3 of Mr. Raymond’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond