Jeff Raymond v. Barnstable, Town of - Police Department (SPR 20231568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2023 SPR23/1568 Danielle Paradis Records/Property Supervisor Barnstable Police Department 1200 Phinneys Lane Hyannis, MA 02601 Dear Ms. Paradis: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Barnstable 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. . . . [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

Danielle Paradis SPR23/1568 Page 2 July 20, 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 Appeals This request was the subject of previous appeals. See SPR23/0867 Determination of the Supervisor of Records (May 15, 2023) and SPR23/1212 Determination of the Supervisor of Records (June 22, 2023). Please note that as of July 7, 2023, SPR23/1212 was opened for reconsideration in regards to Items 1, 2 and 5. In my June 22nd determination, I found that the Department did not sufficiently explain its reasoning to withhold responsive records under Exemption (d) and attorney-client privilege in regards to Item 3. The Department provided a response on July 7, 2023. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1568, 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.

Danielle Paradis SPR23/1568 Page 3 July 20, 2023 The Department’s July 7th Response In its July 7, 2023 response, the Department cited Exemption (d) of the Public Records Law and attorney-client privilege to withhold records responsive to Item 3. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the Department stated, “Exemption (d) allows for the withholding of inter-agency or intra-agency memoranda or letter relating to policy positions being developed by the agency. This exemption is intended to avoid the release of materials that could taint the deliberative process.” In his appeal, Mr. Raymond states, “[the Department] does not provide any additional justification for citation of exemption (d). They merely restate the law, saying withholding of the records is necessary ‘to avoid the release of materials that could taint the deliberative process.’ [the Department does not] cite the deliberative process in which exemption (d) would apply.” Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2017); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party

Danielle Paradis SPR23/1568 Page 4 July 20, 2023 seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its response, the Department stated, “the records are protected under attorney-client privilege. In our May 30 response, the Department provided a spreadsheet detailing the records withheld. The withheld records constitute attorney-client privilege communications pursuant to Suffolk… Particularly, the communications were made in confidence from Department members during the course of a search for legal advice. The privilege to the communications has not been waived… [the Department believes] that the public interest derived from the proper performance of the functions of attorneys acting for their clients outweighs the public’s interest in learning that information.” Additionally, in its previousresponse, the Department provided a privilege log indicating the dates, author, recipients, and descriptions of the records being withheld under the attorney- client privilege. Based upon the Department’s response, I find the Department has established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law with regard to Item 3. Consequently, I decline to opine on the Department’s Exemption (d) claim supporting non-disclosure of the responsive records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Raymond is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond