Jeff Raymond v. Walpole, Town of - Police Department (SPR 20231781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2023 SPR23/1781 Richard M. Kelleher Chief of Police Walpole Police Department 50 South Street Walpole, MA 02081 Dear Chief Kelleher: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Walpole Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 24, 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

Richard M. Kelleher SPR23/1781 Page 2 August 15, 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.... Previous Appeal This request was the subject of a previous appeal. See SPR23/1448 Determination of the Supervisor of Records (July 7, 2023). In my July 7th determination, I ordered the Department to provide Mr. Raymond with a response to his request. Subsequently, the Department responded on July 26, 2023, providing numerous records in redacted form, and citing Exemption (c) of the Public Records Law for redacting the records. Unsatisfied with the Department’s response, Mr. Raymond further appealed, and this case 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. Att’y 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 26th Response In its July 26, 2023 response, the Department provides “charts submitted to the POST Commission from the Police Department, as well as communications related to POST submissions,” and cites Exemptions (c) of the Public Records Law for redacting portions of the charts. See G. L. c. 4, § 7(26)(c). The Department also reiterates its previous claim that the responsive records “are the subjects of dispute in active litigation, administrative hearings, or mediation,” and references the pending litigation in Suffolk Superior Court, Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, (Docket No. 2284CV00906) and New England Police Benevolent Association, Inc., and Daniel Gilbert v.

Richard M. Kelleher SPR23/1781 Page 3 August 15, 2023 Massachusetts Peace Officers Standards and Training Commission, (Docket No. 2384CV00500). 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. Based on the foregoing, it is necessary to address the Department’s claims under Exemption (c) of the Public Records Law pertaining to Items 1, 2, and 5. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477

Richard M. Kelleher SPR23/1781 Page 4 August 15, 2023 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its July 26th response, under Exemption (c), the Department argues the following: In this instance, the Department has carefully considered the application of Exemption (c) to the redacted charts enclosed, to determine whether disclosure of the information that has been redacted or withheld is such that the public’s right to know outweighs any individual officer’s privacy rights, and considered the factors set forth in the PETA case, cited above, the Department has concluded that it is appropriate to minimally redact certain personnel information from the enclosed charts under Exemption (c) while providing the remaining information requested submitted to POST. Based on the Department’s response, where the responsive records appear to concern law enforcement misconduct investigations, and the recent update to Exemption (c) states “that this subclause shall not apply to records related to a law enforcement misconduct investigation,” I find the Department has not met its burden to redact the responsive charts pursuant to Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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