Jeff Raymond v. Rehoboth, Town of - Police Department (SPR 20231834)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2023 SPR23/1834 Sergeant Douglas Brown Records Access Officer Rehoboth Police Department 334 Anawan Street Rehoboth, MA 02769 Dear Sergeant Brown: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Rehoboth 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 May 12, 2023, 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 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

Sergeant Douglas Brown SPR23/1834 Page 2 August 22, 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 Appeals The requested records were the subject of prior appeals. See SPR23/1391 Determination of the Supervisor of Records (July 6, 2023) and SPR23/1621 Determination of the Supervisor of Records (July 19, 2023). In my July 19th determination, I found that the Department did not meet its burden to withhold responsive records and I ordered the Department to provide a further response. On August 2, 2023, the Department responded, indicating that it is withholding records responsive to Items 1, 2, and 5. The Department indicated that it had provided all responsive records for Item 4 and it had no records responsive to Items 3 and 6. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1834, 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.

Sergeant Douglas Brown SPR23/1834 Page 3 August 22, 2023 Current Appeal In his current appeal, Mr. Raymond claimed that the Department did not meet its burden to withhold responsive records. Mr. Raymond’s appeal is limited to Items 1, 2, and 5 of the request. The Department’s August 2nd response In its August 2, 2023 response, the Department indicated that it was withholding records responsive to Items 1, 2, and 5. The Department stated the following: As to items 1, 2, and 5, emails between the Department and POST, three spreadsheets that the department sent to POST, and emails within the Department containing the spreadsheets corresponded to your request. Two spreadsheets summarize disciplinary records for current and former Department personnel, respectively, up to 2021 and the third is in response to POST’s request for a resubmission in a different format. 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 the Departments’ records are such records in Hovsepian, 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 disciplinary records Massachusetts police departments sent as above. Suffolk Superior Court Docket no. 2384CV00500. Also as above, the Department’s records are such records in New England Police Benevolent Association Inc. and so are the subjects of disputes in that litigation as well. With respect 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).

Sergeant Douglas Brown SPR23/1834 Page 4 August 22, 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond