Jeff Raymond v. Merrimac, Town of - Police Department (SPR 20231544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2023 SPR23/1544 Chief Eric M. Shears Merrimac Police Department 2 Jana Way Merrimac, MA 01860 Dear Chief Shears: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Merrimac 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 18, 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…. [5.] A copy of the document your police department sent to the POST 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 M. Shears SPR23/1544 Page 2 July 14, 2023 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 Appeal The requested records were the subject of a prior appeal. See SPR23/1332 Determination of the Supervisor of Records (June 28, 2023). In my June 23rd determination, I closed the appeal after the Department indicated that it would provide a further response to Mr. Raymond. On July 5, 2023, the Department responded indicating that it was withholding responsive records pursuant to an active litigation. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1544, was opened as a result. The Department’s July 5th response In the Department’s July 5, 2023 response, it indicated that it was withholding records responsive to Items 1, 2, and 5 of the April 18th request. The Department further indicated that it had no records responsive to Items 3, 4, and 6 of the request. 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 Items 3, 4, and 6, of the request the Department indicated that it had no responsive records.

Chief Eric M. Shears SPR23/1544 Page 3 July 14, 2023 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 records responsive to Items 3, 4, and 6 of Mr. Raymond’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond