Jeff Raymond v. Westminster, Town of - Police Department (SPR 20231742)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2023 SPR23/1742 Acting Chief Tamulen Westminster Police Department 7 South Street Westminster, MA 01473 Dear Acting Chief Tamulen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Westminster 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 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

Acting Chief Jason Tamulen SPR23/1742 Page 2 August 10, 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 Appeal This request was the subject of a previous appeal. See SPR23/1456 Determination of the Supervisor of Records (July 10, 2023). In my July 10th determination, I found that the Department did not sufficiently explain its reasoning to redact responsive records under Exemption (c) and I declined to opine on Items 1, 2, and 5, because of active litigation. The Department responded on July 20, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1742, 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 July 20th Response In its July 20, 2023 response, the Department cited pending litigation to withhold records responsive to Items 1, 2, 4 and 5.

Acting Chief Jason Tamulen SPR23/1742 Page 3 August 10, 2023 The Department explained: [T]he Supervisor declined to opine on Items 1, 2, and 5 of this request regarding POST Commission submissions. As to Item 4, to the extent your request is seeking the summary chart submitted to the POST Commission on transferred officers active in other law enforcement agencies the Police Department provided you with this chart submitted to the POST Commission with transferred officers’ names, the nature of the complaints, the dates of the incident under review and the law enforcement investigation disposition. Since the Supervisor declined to opine on Items 1, 2 and 5 of your request, no further response to those items is necessary… therefore where the Supervisor has already declined to opine on Items 1 and 5 of the request… the same reason applies to Item 4… With regards to Items 3 and 6, the Department stated, “[the Department] does not have certain communications that you are seeking in your public records request with ‘municipal administration’, as requested in Items 3 and 6…” Current Appeal In his appeal, Mr. Raymond states, “[the Department] denied the records for 1, 2, and 5 in a response on 20 July 2023. However… the litigation is not, in fact, related to 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. Based upon 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 Items 1, 2 and 5 are not related to the pending litigation. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity an exemption which applies. 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. To the extent that the requested records exist, I find the Department must provide the record 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).

Acting Chief Jason Tamulen SPR23/1742 Page 4 August 10, 2023 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond