Jeff Raymond v. Ludlow, Town of - Police Department (SPR 20231772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2023 SPR23/1772 Lieutenant Michael N. Brennan Administrative Lieutenant Ludlow Police Department 612 Chapin Street Ludlow, MA 01056 Dear Lieutenant Brennan: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Ludlow 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 15, 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 calendar year 2022 and through March 31, 2023, preferably in the same format 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

Lieutenant Michael N. Brennan SPR23/1772 Page 2 August 15, 2023 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 SPR23/1252 Determination of the Supervisor of Records (June 26, 2023). In my June 26th determination, I directed the Department to identify the records in its possession. The Department provided a response on July 28, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1772, 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 28th response In its July 28, 2023 response, the Department stated the following: As to items 1, 2, and 5, two emails between the Department and POST and two spreadsheets that the department sent to POST corresponded to your request. One spreadsheet summarizes disciplinary records up to 2021 and the other serves as an

Lieutenant Michael N. Brennan SPR23/1772 Page 3 August 15, 2023 update to disciplinary records through 2022 POST’s request for a resubmission. Said records are withheld pursuant to the litigation exemption. The Supervisor of Records may deny public records request appeals if the public records in question are the subject of disputes in active litigation. 950 CMR 32.08; SPR22/1304; SPR22/1373. Here, these records are subjects of disputes in two active cases. First, Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission is a case where the plaintiffs accused POST of violating the Open Meeting Law, in part, by not releasing the documents that POST requested and received from Massachusetts police departments. Suffolk Superior Court Docket no. 2284CV00906. As these records are such records, they are the subjects of disputes in that litigation. Second, New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission is a case where the plaintiffs accused POST of an impermissibly vague moral character requirement, a determination that relies in part on the same records as above. Suffolk Superior Court Docket no. 2384CV00500. Also as above, these records are such records and so are the subjects of disputes in this litigation as well. Finally, as to items 3 and 6, the Department holds no other responsive records. As to item 4, that 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. Please be advised the Town is not required to answer questions, do research, or create documents in response to your request. See G.L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The Town’s duty to comply with requests for records extends only to those that exist and are in the custody of the custodian of records at the time of your request. See G.L. c. 4, § 7(26). No duty to create records 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). Where the Town has indicated that it does not possess records responsive to Items 3, 4, and 6, I find that this portion of the request is resolved. Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part:

Lieutenant Michael N. Brennan SPR23/1772 Page 4 August 15, 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. Hence, to the extent that 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 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). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond