Jeff Raymond v. Haverhill Police Department (SPR 20232041)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2023 SPR23/2041 Robert Pistone, Jr. Chief of Police Haverhill Police Department 40 Bailey Boulevard Haverhill, MA 01830 Dear Chief Pistone: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Haverhill 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 May 22, 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. . . [5.] A copy of the document your police department sent to the POST 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 Robert Pistone, Jr. SPR23/2041 Page 2 September 11, 2023 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 appeals This request was the subject of previous appeals. See SPR23/1213 Determination of the Supervisor of Records (June 22, 2023); SPR23/1553 Determination of the Supervisor of Records (July 20, 2023) and SPR23/1774 Determination of the Supervisor of Records (August 14, 2023). The Department responded on August 28, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1774, 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 28th Response In its August 28, 2023 response, the Department stated, “... on August 23, 2023 the POST Commission posted its publicly available data regarding police officers, including for the City of Haverhill, online at ... and refers this requestor to such records now available.”

Chief Robert Pistone, Jr. SPR23/2041 Page 3 September 11, 2023 Current appeal In his appeal, Mr. Raymond stated, “[o]n 28 August 2023, [the Department] provided a supplemental response pointing me to a website by the POST Commission. As I requested documents created, produced, and distributed by Haverhill and its PD and not records published or produced by the POST Commission, I am forced to issue this appeal.” Although the Department states that Mr. Raymond has received his request in full, based on the POST Commission online publication, it is unclear if the Department possesses the specific records requested. The Department must clarify if it possesses the records identified in Mr. Raymond’s request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether the requested records exist. 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 the response to this office at pre@sec.state.ma.us. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond