Jeff Raymond v. Agawam, Town of - Police Department (SPR 20231535)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2023 SPR23/1535 Eric P. Gillis Chief of Police Agawam Police Department 681 Springfield Street Feeding Hills, MA 01030 Dear Chief Gillis: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Agawam 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

Chief Eric Gillis SPR23/1535 Page 2 July 18, 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. Prior Appeals This request was the subject of previous appeals. See SPR23/0812 Determination of the Supervisor of Records (May 9, 2023) and SPR23/1208 Determination of the Supervisor of Records (June 21, 2023). In my June 21st determination, I declined to opine on matters regarding Items 1, 2, and 5 and in light of the ongoing litigation and found that it was unclear how the requested records could be withheld under Exemption (c) of the Public Records Law regarding redactions under Item 4. The Department responded on June 30, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1522, 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 30th Response In its June 30, 2023 response, the Department provided records responsive to Item 4

Chief Eric Gillis SPR23/1535 Page 3 July 18, 2023 and cited Exemptions (a), (c), (f), (o), and (p) of the Public Records Law to redact the records. When citing these exemptions, the Department stated: Exemption A: Domestic information has been redacted as it is not public records. Exemption C: Medical information or information (medical conditions, alcohol consumption, family fights) for specifically named individuals has been redacted because the disclosure of which may constitute an unwarranted invasion of personal privacy. Civilians have also had telephone numbers, highly personal and intimate details such as Social Security Numbers and Driver License Numbers redacted (Doe V. RMV). Exemption F: redactions were made to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Any details in witness statements, which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness have been redacted. Information regarding ongoing investigations has also been redacted. Exemption O: Law Enforcement Personnel addresses and telephone numbers which would allow for the identification of home addresses or other confidential information have been redacted. Exemption P: Law Enforcement family members have had their names, home addresses and home telephone numbers redacted. Current Appeal In his appeal, Mr. Raymond states, “[e]xemption (c) specifically carves out police disciplinary records… [i]t is unknown as to what reasons exemptions (a), (f), (o), and (p) apply…” Mr. Raymond further states, “[the Department] has not met its burden to explain how the records relate to the [active litigation]…” 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:

Chief Eric Gillis SPR23/1535 Page 4 July 18, 2023 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. With regard to Items 1, 2, and 5 and in light of the ongoing litigation known as Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court Docket no. 2284 CV 00906, I decline to opine on this matter 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). In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a), (c), (f), (o), and (p) claims made by the Department to redact records responsive to Item 4, the Department must provide this office with un-redacted copies of the responsive records for Item 4, for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Chief Eric Gillis SPR23/1535 Page 5 July 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond