Suzanne Rapoza v. Barnstable, Town of - Police Department (SPR 20232192)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2023 SPR23/2192 Danielle Paradis Records Access Officer Barnstable Police Department 1200 Phinney’s Lane Barnstable, MA 02601 Dear Ms. Paradis: I have received the petition of Suzanne Rapoza, Esq., of 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 July 10, 2023, Attorney Rapoza requested: [1.] The contents of any complaints against [three identified individuals], 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 [three identified individuals’] conduct while with the Barnstable Police Department. Previous Appeal This request was the subject of a previous appeal. See SPR23/1872 Determination of the Supervisor of Records (August 25, 2023). In my August 25th determination, I ordered the Department to provide Attorney Rapoza with a response to her request. On September 11, 2023, the Department responded. Unsatisfied with the Department’s response, Attorney Rapoza petitioned this office and this appeal, SPR23/2192, 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 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 SPR23/2192 Page 2 September 28, 2023 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 11th Response In its September 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. In support thereof, it is in the opinion of the Department that these records relate directly to the matter of docket number 2272CR00041 Commonwealth vs Alston, Garvey E., which is currently being litigated by your office. Upon review of the information provided on the Massachusetts Trial Court Electronic Case Access, the matter appears to still be open and pending. [Three named officers] are involved in the matter. [One named officer] is the reporting officer, [two named officers] took part in the investigation, which lead to the issuance of an arrest warrant and subsequent apprehension of [a named individual.] Please be advised that there are 28 records that are responsive to your request. As the Department has previously specified, the withholding of records is not pursuant to an exemption in the Public Records Law, we are relying on regulations that the Supervisor has available at her discretion. The specific officers identified in this public records request are witnesses scheduled to appear before the Barnstable County Superior Court in docket number 2272CR00041. The Superior Court has already held a hearing on the Commonwealth’s Motion to Restrict Discovery of Brady Material. The Court’s decision is attached. Importantly, the decision discusses at length the role of the Commonwealth’s Public Records Law as applied to the subject cases and the Court has left available the possibility of entertaining further motions to limit disclosure of the requested materials. The Department, through the Office of the Town Attorney, will be entering an appearance in these matters and, after consultation with the District Attorney’s Office, and Defense Counsel, may file

Danielle Paradis SPR23/2192 Page 3 September 28, 2023 motions for protective orders in the Superior Court. The Town will keep the Supervisor informed of the filing and decisions on such motions. 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. Consequently, although the Department indicates there are 28 records, I find the Department must identify the records in its possession that are responsive to the request. 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 Rapoza 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. Sincerely, Manza Arthur Supervisor of Records cc: Suzanne Rapoza, Esq.