Jeff Raymond v. Westfield, City of - Police Department (SPR 20231806)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2023 SPR23/1806 Robyn Gay Records Access Officer Westfield Police Department 15 Washington Street Westfield, MA 01085 Dear Ms. Gay: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Westfield 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 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

Robyn Gay SPR23/1806 Page 2 August 16, 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 SPR23/1438 Determination of the Supervisor of Records (July 10, 2023). In my July 10th determination, I ordered the Department to provide Mr. Raymond with a response to his request. On August 3, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1806, 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. 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 August 3rd Response In its August 3, 2023 response, the Department stated:

Robyn Gay SPR23/1806 Page 3 August 16, 2023 As outlined in the City’s response dated April 26, 2023, the Department is in possession of information responsive to your request, as the Department was required to comply with the POST Commission’s reporting schedule (to the extent it had information responsive to the same). Despite possessing responsive records, those records are exempt from disclosure under 950 CMR 32.08(2), where the requested records are the subject of active litigation, through various matters. (Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court, Docket No. 2284CV00906 and New England Police Benevolent Associate, Inc. and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court Docket No. 2384CV00500). Where the litigation is ongoing, it is unclear what portions of the potentially responsive records will be exempt from disclosure. Disclosure prior to a ruling in the above-reference matters could lead to a violation of the public records and/or personnel records law. Further, the Supervisor of Records has declined to opine on the applicability of that regulation in other matters related to identical requests (SPR23/180 and SPR23/1208). The city believes that it applies to all the numbered requests listed above and that the prejudice of ordering disclosure prior to the conclusion of said litigation far outweighs the public interest in releasing the information. Further, beyond the active litigation exemption, the City also believes that exemptions (a), (c), and (f) apply throughout the potentially responsive records. The City reserves the right to argue the applicability of any redactions required by law after a determination that the Active Litigation does not apply or if the [litigation] concludes and more clarity is provided through that process. Pending 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. 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);

Robyn Gay SPR23/1806 Page 4 August 16, 2023 Flatley, 419 Mass. at 511. Consequently, I find the Department must identify the records in its possession. 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. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond