Will Katcher v. Lenox, Town of - Police Department (SPR 20242063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2024 SPR24/2063 Stephen E. O’Brien Chief of Police Lenox Police Department 6 Walker Street, Suite 1 Lenox, MA 01240-2741 Dear Chief O’Brien: I have received the petition of Will Katcher, of MassLive, appealing the response of the Lenox 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 June 7, 2024, Mr. Katcher requested, “[t]he report into allegations against former [identified] officer completed in August 2023.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/1740 Determination of the Supervisor of Records (June 24, 2024). In my June 24th determination, I learned that the Department provided Mr. Katcher with a supplemental response on June 14, 2024. The Department also provided an additional response on June 27, 2024. Unsatisfied with the responses, Mr. Katcher petitioned this office and this appeal, SPR24/2063 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). 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 Stephen E. O’Brien SPR24/2063 Page 2 August 2, 2024 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 June 14th and June 27th Responses In its June 14th response, the Department produced a report involving the [identified officer]. The Department advised, “[i]n his response to our reply, [Mr.] Katcher referenced a report submitted to POST by me. Many reports in this instance were submitted to POST and not knowing which report he is looking for makes it difficult for us to provide. Also, this investigation involved a matter that was forwarded to the Pittsfield Police Department. That matter may still be under investigation at this point. We do not have knowledge of that. Lastly, this is a personnel matter, that in our view, is exempt from becoming a public record.” In its June 27, 2024 response, the Department repeated its June 14th statements. Current appeal In his appeal, Mr. Katcher stated, “... internal affairs investigations completed by police departments are not exempt from the public record. Countless departments have provided internal affairs files in response to public records requests. See examples here ... The Lenox Police Department must be held to the same standard.” Based on Mr. Katcher’s claims, in conjunction with the Department’s responses, it is unclear if the Department possesses any additional records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. Additionally, the Department’s responses did not contain the specificity required in a denial of access to public records. Based on the Department’s responses, it appears the Department intends to withhold records from disclosure. If the Department does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”).

Chief Stephen E. O’Brien SPR24/2063 Page 3 August 2, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Katcher with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Mr. Katcher may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Will Katcher