Jeff Raymond v. Ayer, Town of - Police Department (SPR 20232591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 9, 2023 SPR23/2591 Brian Gill Chief of Police Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Chief Gill: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Ayer Police Department to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 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 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 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 Brian Gill SPR23/2591 Page 2 November 9, 2023 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 and Reconsideration The requested records were the subject of prior appeals and a subsequent reconsideration. See SPR23/1211 Determination of the Supervisor of Records (June 15, 2023); SPR23/1272 Determinations of the Supervisor of Records (June 27, 2023 and August 2, 2023); SPR23/1908 Determination of the Supervisor of Records (August 29, 2023); and SPR23/2205 Determination of the Supervisor of Records (September 22, 2023). In my September 22nd determination, I found that the Department did not meet its burden to redact portions of the records under Exemption (c) of the Public Records Law. On October 6, 2023, the Department responded, providing further explanation regarding its redactions under Exemption (c). Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/2591, 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 October 6th response In its October 6, 2023 response, the Department stated the following: The Ayer Police Department is responding [to] the above-referenced determination. The Police Department, without waiving any of its rights, incorporates all its prior responses to this request, which supports its position

Chief Brian Gill SPR23/2591 Page 3 November 9, 2023 regarding the minimal redactions made. To minimize any further strain on its public safety resources, the Police Department respectfully refers the requester to such responses and the position of the Police Department contained therein. The Police Department submits that it has adequately explained the reasons for its invocation of Exemption (c) (G.L. c. 4, §7(26)(c)) of the Public Records Law to support the limited redactions made to the provided records. The Police Department further submits that any further appeals to the Supervisor should be declined as the records submitted by the Police Department to POST that were already provided to the requester are part of the POST Commission’s ongoing administrative review at this time: https://www.mass.gov/infodetails/officer- disciplinary-records-database; see 950 CMR 32.08(2)(b)(1). The POST Commission has stated as follows as of October 6, 2023: POST STATEMENT: The POST Commission released the second update to the Law Enforcement Officer Disciplinary Records Database on September 19, 2023. This update addressed correcting certain items and adding information and fields to provide additional information. Note that POST is planning the release of additional data. We continue reviewing requests for corrections and/or updates and will append to the database on an ongoing basis. 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).

Chief Brian Gill SPR23/2591 Page 4 November 9, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond