Jeff Raymond v. Provincetown, Town of- Police Department (SPR 20232602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2602 Barbara Peters Records Clerk Provincetown Police Department 26 Shank Painter Road Provincetown, MA 02657 Dear Ms. Peters: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Provincetown 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 “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 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

Barbara Peters SPR23/2602 Page 2 November 8, 2023 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 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 appeals This request was the subject of previous appeals. See SPR23/1383 Determination of the Supervisor of Records (July 6, 2023); SPR23/1751 Determination of the Supervisor of Records (August 10, 2023); and SPR23/2049 Determination of the Supervisor of Records (September 12, 2023). In the September 12th determination, I ordered the Department to clarify if it possessed additional records responsive to the request. The Department provided a response on September 25, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2597, 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. Attorney 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. The Department’s September 25th response In its September 25, 2023 response, the Department argues the following: Specifically, without waiving any of its rights, the Police Department continues to

Barbara Peters SPR23/2602 Page 3 November 8, 2023 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 in detail. 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