Jeff Raymond v. Harwich, Town of - Police Department (SPR 20232045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2023 SPR23/2045 David J. Guillemette Chief of Police Harwich Police Department 183 Sisson Road Harwich, MA 02645 Dear Chief Guillemette: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Harwich 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 21, 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

Chief David Guillemette SPR23/2045 Page 2 September 11, 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 and reconsideration This request was the subject of a previous appeal and subsequent reconsideration. See SPR23/1318 Determinations of the Supervisor of Records (June 30, 2023, August 7, 2023). In my August 7th determination, I ordered the Department to provide Mr. Raymond with a response to his request. On August 28, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/2045, 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 states:

Chief David Guillemette SPR23/2045 Page 3 September 11, 2023 The Harwich Police Department is providing the within further response to this determination at this time. Without waiving its prior responses and expressly incorporating them herein, including the records you were previously provided, the Harwich Police Department is hereby advising the requester and the Supervisor that on August 23, 2023, the POST Commission posted its publicly available data regarding police officers, including those currently or formerly employed for the Town of Harwich, online at: https://www.mass.gov/info- details/officer-disciplinary-recordsdatabase and refers the requester to such records released by the POST Commission now available electronically as of August 23rd in providing this further response, as well as the records previously provided by the Department. Current Appeal In his appeal, Mr. Raymond argues: On 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 Harwich and its PD and not records published or produced by the POST Commission, I am forced to issue this appeal. Based on the Department’s response, in conjunction with Mr. Raymond’s appeal, it is unclear if the Department possesses additional records responsive to the 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). 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). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). 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.

Chief David Guillemette SPR23/2045 Page 4 September 11, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond