Jeff Raymond v. Hopedale, Town of - Police Department (SPR 20231524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2023 SPR23/1524 Lieutenant Donald J. Martin, Sr. Records Access Officer Hopedale Police Department 70 Hopedale Street Hopedale, MA 01747 Dear Lieutenant Martin: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Hopedale Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 15, 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

Donald J. Martin, Sr. SPR23/1524 Page 2 July 17, 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 Appeal This request was the subject of a previous appeal. See SPR23/1257 Determination of the Supervisor of Records (June 26, 2023). In my June 26th determination, I ordered the Department to provide Mr. Raymond with a supplemental response to his request. Subsequently, the Department responded on June 29, 2023, providing numerous records in redacted form, and indicating it does not possess others. Unsatisfied with the Department’s response, Mr. Raymond appealed, and this case 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. The Department’s June 29th Response In its June 29, 2023 response, the Department provides “charts submitted to the POST Commission,” and cites Exemptions (c) of the Public Records Law for redacting portions of the charts. See G. L. c. 4, § 7(26)(c). The Department also indicates that the responsive records are at issue in “litigation pending in Massachusetts courts.” Additionally, the Department states that it “does not have any e-mails with ‘municipal administration,’ as specified in [Mr. Raymond’s] request, after diligent search.” Further, in a telephone conversation with this office on July 12, 2023, the Department confirmed that it does not possess any additional records responsive to Mr. Raymond’s request.

Donald J. Martin, Sr. SPR23/1524 Page 3 July 17, 2023 No Duty to Create Records Under the Public Records Law, the Department 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 possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Consequently, the Department has no duty to create records responsive to the requests numbered 3, 4 and 6. 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 the remaining portions 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, 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