Jeff Raymond v. Westminster, Town of - Police Department (SPR 20232582)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2023 SPR23/2582 Acting Chief Jason Tamulen Westminster Police Department 7 South Street Westminster, MA 01473 Dear Acting Chief Tamulen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Westminster 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 April 16, 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

Acting Chief Jason Tamulen SPR23/2582 Page 2 November 9, 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. Prior Appeals This request was the subject of prior appeals. See SPR23/1456 Determination of the Supervisor of Records (July 10, 2023); SPR23/1742 Determination of the Supervisor of Records (August 10, 2023); and SPR23/2040 Determination of the Supervisor of Records (September 11, 2023). In my September 11th determination, I found that the Department did not meet its burden to withhold the records. The Department responded on September 26, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2582, 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(d)(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…”); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 26th Response In its September 26, 2023 response, the Department cited pending Exemption (c) of the Public Records Law and ongoing litigation to redact the charts.

Acting Chief Jason Tamulen SPR23/2582 Page 3 November 9, 2023 In its response, the Department states: [The Department] continues to maintain that Exemption (c) to the Public Record Law permits it to redact limited disciplinary information from the officer-specific documentation submitted to POST, under Exemption (c) (G.L. c. 4, §7(26)(c)), and that it has adequately justified the limited redactions made in this instance, for the reasons previously explained. The Police Department additionally notes that the scope of the statutory amendment to Exemption (c) made as part of police reform legislation, and the POST Commission’s grant of authority regarding the release of police officers’ disciplinary information is currently the subject of ongoing litigation in the case of Eric Mack v. Office of the District Attorney of the Bristol County, which the Supreme Judicial Court (SJC) is reviewing pursuant to its grant of direct appellate review. Active 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. With respect to Mr. Raymond’s records request, these requested records are the subject of a dispute in active litigation. See Eric Mack v. Office of the District Attorney of the Bristol District No. SJC-13468. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond