Jeff Raymond v. Dedham, Town of - Police Department (SPR 20232087)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2023 SPR23/2087 Officer Ronald Pucci Records Access Officer Dedham Police Department 600 High Street Dedham, MA 02026 Dear Officer Pucci: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Dedham Police Department (Department) to his requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 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

Officer Ronald Pucci SPR23/2087 Page 2 September 18, 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. In addition, on April 20, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department and communications in regard to certain lawsuits and public records.” Specifically, Mr. Raymond requested: [1] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following sentences (as they appear in said records, designated with quotation marks (example: “Public Records”), broadly construed.  “the Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2)”  “the responsive records in question are the subjects of dispute in active litigation”  “I support thereof, it is the opinion of the Department” and/or “In support thereof, it is the opinion of the Department” [2] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following Massachusetts court cases, broadly construed.  Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, (also known as Hovsepian, or Hovsepian v. Massachusetts Peace Officer Standards and Training Commission, or Hovsepian v. POST, or similar constructions) Suffolk Superior Court Docket no.2284 CV 00906  New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission (also known as MEBPA v. POST or similar constructions), Suffolk Superior Court Docket no. 2384 CV 00500 [3] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the

Officer Ronald Pucci SPR23/2087 Page 3 September 18, 2023 dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following appeal determinations published by the office of the Secretary of the Commonwealth of Massachusetts Public Records Office (“Appeal Determinations”), broadly construed.  SPR20221301 (also known as SPR22/1301) (reconsideration; Lynn, City of - Police Department, Custodian)  SPR20221373 (also known as SPR22/1373) (reconsideration; Massachusetts Peace Officer Standards and Training Commission, Custodian) Previous Appeals This request was the subject of previous appeals. See SPR23/1158 Determination of the Supervisor of Records (June 14, 2023), SPR23/1567 Determination of the Supervisor of Records (July 21, 2023), and SPR23/1816 Determination of the Supervisor of Records (August 21, 2023). In my August 21st determination, I ordered the Department to provide Mr. Raymond with a response to his request. On September 1, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/2087, 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 September 1st Response In its September 1, 2023 response, the Department states: The Dedham Police Department is providing the within response to appeal SPR23/1816 involving POST Commission information. Without waiving its prior

Officer Ronald Pucci SPR23/2087 Page 4 September 18, 2023 responses and expressly incorporating them herein, including the records you were previously provided, the 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 for the Town of Dedham, online at: https://www.mass.gov/info-details/officer-disciplinary- records-database and refers the requester to such records released by the POST Commission now available electronically as of August 23, 2023 in providing this further response, as well as the records previously provided directly by the Police Department. In addition, the scope of the statutory amendment to Exemption (c) as part of police reform legislation, and the POST Commission’s grant of authority regarding the release of police officers’ information is currently the subject of ongoing litigation in the case of Eric Mack v. Office of the District Attorney of the Bristol County, SJC-13468, . . . which the Supreme Judicial Court (SJC) is reviewing pursuant to its grant of direct appellate review. Of note, in the Mack case, the SJC is specifically considering whether “the Legislature’s grant of authority to [the POST Commission] was intended to create the exclusive avenue for members of the public to obtain access to the names of law enforcement officers under investigation.” Given the issues presented and being considered by the SJC in this appeal, and the absence of clear judicial interpretation of Exemption (c) as applicable to your request, the Department continues to maintain that it appropriately redacted certain disciplinary information from the records provided to you. Current Appeal In his appeal, Mr. Raymond asserts: The Supervisor has already spoken clearly on the issue of exemption (c). The PD’s referral to POST’s release on 23 August 2023 is inappropriate and irrelevant, as I have specifically requested records from the PD. What POST chooses to publish is of no relevance to the PD’s responsibilities under the public records law. In regards to Eric Mack, this lawsuit is not related in any form to the requested records. I remind the PD, K-P Law, and the Public Records Division that the litigation exemption only applies when “the public records in question are the subjects of disputes in active litigation,” (emphasis mine) and Mack is concerned with the contents of specific incident reports about a fatal police shooting in Fall River, not the disciplinary records created by the municipality and its PD (or any other records) for submission to the POST Commission. While Eric Mack has exemption (c) implications, the argument put forth by the defendants in the case does not implicate the requested records submitted to POST.

Officer Ronald Pucci SPR23/2087 Page 5 September 18, 2023 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Despite the Department’s response, I find it has not met its burden to redact the information from the responsive records. Specifically, where the amendment to Exemption (c) states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it remains uncertain how the requested records can be redacted pursuant to Exemption (c). Additionally, 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

Officer Ronald Pucci SPR23/2087 Page 6 September 18, 2023 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). Consequently, I find the Department did not meet its burden of specificity in responding to the records request. Order Accordingly, the Department is ordered to provide Mr. Raymond with a response to the requests, 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