Maggy Hansen v. Barnstable, Town of - Police Department (SPR 20231930)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 1, 2023 SPR23/1930 Danielle Paradis Records Access Officer Barnstable Police Department 1200 Phinney’s Lane Barnstable, MA 02601 Dear Ms. Paradis: I have received the petition of Maggy Hansen, Esq., of the Committee for Public Counsel Services, appealing the response of the Barnstable 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 August 4, 2023, Attorney Hansen requested: [1.] The contents of any complaints against [an identified individual], whether by citizens, other officers, or other agencies since their initial employment with the Barnstable Police Department. [2.] The details and results of any investigations into complaints or any other inquiries into [an identified individual’s] conduct while with the Barnstable Police Department. On August 11, 2023, the Department responded. Unsatisfied with the Department’s response, Attorney Hansen petitioned this office and this appeal, SPR23/1930, 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 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

Danielle Paradis SPR23/1930 Page 2 September 1, 2023 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 11th Response In its August 11, 2023 response, the Department states: With respect to your request, the Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2) as the responsive records in question are related to the subjects of disputes in active litigation. Specifically, these records relate directly to the matter of [an identified case], which is currently being litigated by your office and where [an identified individual] is one of the reporting officers. 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 the 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); Flatley, 419 Mass. at 511. Thus, the Department must identify the records in its possession that it withheld from disclosure. It is additionally uncertain how the requested records are related to the ongoing litigation. Consequently, I find the Department did not meet its burden of specificity in responding to the records request. Conclusion Accordingly, the Department is ordered to provide Attorney Hansen with a response to

Danielle Paradis SPR23/1930 Page 3 September 1, 2023 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Maggy Hansen, Esq.