Jeff Raymond v. South Hadley, Town of - Police Department (SPR 20231649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 27, 2023 SPR23/1649 Chief Jennifer Gundersen Chief of Police South Hadley Police Department 41 Bridge Street South Hadley, MA 01075 Dear Chief Gundersen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the South Hadley 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 June 19, 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 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 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 Jennifer Gundersen SPR23/1649 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. The Department responded on July 14, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1649, 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 response to your requests referenced above as ‘1,’ ‘2,’ and ‘5,’ although the Department is presently in possession of the requested records, the 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

Chief Jennifer Gundersen SPR23/1649 Page 3 July 27, 2023 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 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). In response to your request referenced above as ‘4,’ the Department is not in possession of a record of ‘complaints against police officers’ issued in the calendar year 2022 and through March 31, 2023, in the same format used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database. In response to your requests referenced above as ‘3’ and ‘6,’ I am attaching the letter that accompanied the Department’s submission. The Department is not in possession of any other 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’ or ‘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.’ Beyond the ‘Active Litigation’ exemption, the City believes that exemptions (a), (c), and (f) apply throughout the potentially responsive records. The Town reserves the right to argue the applicability of any redactions required by law following a determination that the Active Litigation exemption does not apply or if the litigation concludes and more clarity is provided through that process. 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). Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part:

Chief Jennifer Gundersen SPR23/1649 Page 4 July 27, 2023 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. Burden of specificity The Department has not met its burden of specificity in claiming Exemptions (a), (c) and (f) to withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear if the Department identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Although the Department states that the requested records in its possession should be withheld, it is unclear what records they are. Therefore, the Department must identify the record(s) it has in its possession that it withheld under Exemptions (a), (c) and (f) as well as provide specific reasons for such withholding. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to the request, 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).

Chief Jennifer Gundersen SPR23/1649 Page 5 July 27, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond