Jason Poulos v. Sherborn Town of - Police Department (SPR 20241714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2024 SPR24/1714 Lieutenant Luke Tedstone Records Access Officer/Records Custodian Sherborn Police Department 17 Washington Street Sherborn, MA 01770 Dear Lieutenant Tedstone: I have received the petition of Jason Poulos appealing the response of the Sherborn 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 May 17, 2024, Mr. Poulos requested the following: Email correspondences between [a named individual] of the Sherborn Police Department and [another individual] dated between October 23, 2019, to November 4, 2019, including all attachments contained within these correspondences. The Department responded on May 21, 2024, denying the request, and indicating that the requested records are the subjects of disputes in active litigation. Unsatisfied with the Department’s response, Mr. Poulos appealed, and this case 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 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

Lieutenant Luke Tedstone SPR24/1714 Page 2 June 24, 2024 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 May 21st Response In its May 21, 2024 response, the Department states that the responsive records are the subjects of disputes in active litigation. 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. In its May 21st response, the Department states, “[t]he documents sought in your public records request dated May 17, 2024 are the subjects of disputes in active litigation pending in the Middlesex Superior Court, Richard Thompson v. Town of Sherborn, et al., 2181CV01004. Therefore, your request is denied.” Based on the information provided in the Department’s May 21st response, I find it is unclear how the records at issue in this appeal are the subjects of the dispute in active litigation. Burden of Specificity Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on the Department’s response, it is unclear which exemption or exemptions the Department is citing in order to withhold the requested records. Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. See G. L. c. 66, § 10(b)(iv) (a 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; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters.

Lieutenant Luke Tedstone SPR24/1714 Page 3 June 24, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Poulos 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: Jason Poulos