Jeff Raymond v. Rockland, Town of - Police Department (SPR 20231881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 28, 2023 SPR23/1881 Nicholas P. Zeoli Chief of Police Rockland Police Department 490 Market Street Rockland, MA 02370 Dear Chief Zeoli: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Rockland 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 June 18, 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

Chief Nicholas P. Zeoli SPR23/1881 Page 2 August 28, 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 SPR23/1606 Determination of the Supervisor of Records (July 27, 2023). In my July 27th determination, I found the Department had not met its burden of specificity in responding to the request. Subsequently, the Department responded on August 10, 2023. 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. 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 10th Response In its August 10, 2023 response, the Department indicates that it possesses two emails with attachments responsive to Items 1 and 5 of the request, and argues that these records are the subject of active litigation. The Department references the pending litigation at 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.,

Chief Nicholas P. Zeoli SPR23/1881 Page 3 August 28, 2023 and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission (Docket No. 2384CV00500). Additionally, the Department indicates that it is not in possession of any records responsive to Items 2, 3, 4, and 6 of 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. Based on the foregoing, it is necessary to address the Department’s claims for withholding records pertaining to Items 1 and 5. Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Department’s response, it is unclear which exemption the Department is citing in order to withhold the requested records. See G. L. c. 66, § 10(b)(iv) (a 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”). The Department must clarify this matter. Additionally, it is unclear whether the responsive records can be segregated and redacted so that non-exempt material can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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.

Chief Nicholas P. Zeoli SPR23/1881 Page 4 August 28, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond