Jeff Raymond v. Northampton, City of - Police Department (SPR 20231629)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 27, 2023 SPR23/1629 Julie A. Gaudreau Records Supervisor Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. Gaudreau: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Northampton 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 16, 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 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

Julie A. Gaudreau SPR23/1629 Page 2 July 27, 2023 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 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 SPR23/1336 Determination of the Supervisor of Records (June 29, 2023). The Department provided a response on July 14, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1629, 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. Attorney 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 July 14th response In its July 14, 2023 response, the Department stated the following: In regards to request numbers 1, 2, and 5: while we are in possession of records responsive to these requests, (original spreadsheet sent to POST, emails between this Department and POST officials, and a second spreadsheet sent to POST), the

Julie A. Gaudreau SPR23/1629 Page 3 July 27, 2023 Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2) as the responsive records in question are the subjects of dispute in active litigation, administrative hearings, or mediation. In support thereof, it is the opinion of the Department that these records relate directly to the matters of Hovsepian. Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court Docket no. 2284 CV 00906 and New England Police Benevolent Association, Inc ., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court Docket no. 2384 CV 00500. Upon review of the information provided on the Massachusetts Trial Court Electronic Case Access, both of these matters appear to still be open and pending. Also, in withholding these responsive records, this Department is relying upon the following decisions rendered by the Supervisor of Public Records in substantially similar matters: SPR20221301 (June 17, 2022); SPR20221373 (June 29, 2022); more recently, in response to this exact request by this same requestor, SPR20231080 (June 8, 2023) and SPR20231208 (June 21, 2023.) It is the position of the Department that the court may be called upon to decide whether personnel and investigatory records provided to the Commission by law enforcement agencies are subject to production in response to public records requests, and is loath to release such records prior to a judicial ruling. Regarding Request number 4, as this Department does not have ‘what the 2023 submission would have looked like under the previous format’ ‘in the same format used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database,’ or any documents that list officers who do not have a disciplinary record or complaints against them, or who resigned or retired in good standing, producing said document would require the creation of a record. 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). This Department has no responsive documents to request number 3 or number 6. Please be advised, 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). 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).

Julie A. Gaudreau SPR23/1629 Page 4 July 27, 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 regard to Items 1, 2, and 5 of the request, based on a July 17, 2023 letter from the Massachusetts Peace Officer Standards and Training Commission (POST), new information has come to light in which I find that records responsive to these Items are not related to the pending litigation. The Department’s response did not contain the specificity required in a denial of access to public records. The Department did not specify under what exemption of the Public Records Law it intends to withhold the requested records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department must use its knowledge of the records to facilitate providing any responsive records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to Items 1, 2, and 5, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond