Maggy Hansen v. Barnstable, Town of - Police Department (SPR 20232702)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2023 SPR23/2702 Danielle Paradis Records Supervisor Barnstable Police Department 1200 Phinney’s Lane Hyannis, MA 02601 Dear Ms. Paradis: I have received the petition of Maggy Hansen, Esq., of the 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 October 24, 2023, Attorney Hansen requested the following records: [1.] The contents of any complaints against [a named police officer], 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 [a named police officer]’s conduct while with the Barnstable Police Department. The Department provided a response on November 7, 2023. Unsatisfied with the Department’s response, Attorney Hansen petitioned this office and this appeal, SPR23/2702, 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). 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 SPR23/2702 Page 2 November 21, 2023 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 November 7th response In its November 7, 2023 response, the Department states that it “intend[s] to withhold such 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.” The Department clarifies that “these records relate directly to the matter of docket #2325CR001123 Commonwealth v. Ruthanne Bennett, which is currently being litigated by [Attorney Hansen]’s office and where [a named police officer] is one of the investigating officers.” 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. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity an 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, I find the Department must identify the records in its possession and provide additional information regarding how the requested records, in their entirety, are the subjects of dispute in active litigation. Conclusion Accordingly, the Department is ordered to provide Attorney Hansen 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. Attorney Hansen may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Danielle Paradis SPR23/2702 Page 3 November 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Maggy Hansen, Esq.