Keith Lyons v. Boxborough, Town of - Town Clerk (SPR 20242333)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2024 SPR24/2333 Rebecca J. Harris, PhD. Town Clerk Town of Boxborough 29 Middle Road Boxborough, MA 01719 Dear Dr. Harris: I have received the petition of Keith Lyons appealing the response of the Town of Boxborough (Town) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 5, 2024, Mr. Lyons requested a copy of “… the IA completed and sustained for former officer … be provided to me without delay.” Previous Appeals This request was the subject of previous appeals. See SPR24/1800 Determination of the Supervisor of Records (July 3, 2024) and SPR24/2060 Determination of the Supervisor of Records (August 2, 2024). In my August 2nd Determination, I found that the Town did not meet its burden to withhold the record under Exemptions (a) and (c) of the Public Records Law. The Town provided a response on August 16, 2024, denying the request and claiming the responsive records are exempt from disclosure under Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Unsatisfied with the Town’s response, Mr. Lyons petitioned this office and this appeal, SPR24/2333, 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 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

Rebecca J. Harris, PhD. SPR24/2333 Page 2 September 3, 2024 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. 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 Town’s August 16th Response In its August 16, 2024 response, the Town states that it has withheld the responsive record under Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The Town cited the POST Commission Regulations, 555 C.M.R. 1.03 and G. L. c. 6E, § 8(c)(2), as the basis for withholding the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Town cites 555 C.M.R. 1.03, which provides in pertinent part:

Rebecca J. Harris, PhD. SPR24/2333 Page 3 September 3, 2024 Confidentiality of Preliminary Inquiries. All proceedings and records relating to a preliminary inquiry by the division of standards, including any internal review to determine whether there is sufficient credible evidence to initiate a preliminary inquiry, shall be kept strictly confidential pursuant to M.G.L. c. 6E, § 8(c)(2) and M.G.L. c. 4, § 7, twenty-sixth, the exemptions to the definitions of public records… 555 C.M.R. 1.03. The Town further cites G. L. c. 6E, § 8(5)(c)(2), which provides in pertinent part: The division of police standards may initiate a preliminary inquiry into the conduct of a law enforcement officer upon receipt of a complaint, report or other credible evidence that is deemed sufficient by the commission that the law enforcement officer may have engaged in prohibited conduct. All proceedings and records relating to a preliminary inquiry or initial staff review used to determine whether to initiate an inquiry shall be confidential, except that the executive director may turn over to the attorney general, the United States Attorney or a district attorney of competent jurisdiction evidence which may be used in a criminal proceeding. G. L. c. 6E, § 8(c)(2). In its August 16th response, the Town states, “[a]t this time, no public hearing has been conducted by POST regarding former Officer … certification. In light of this, and given that any public hearing that will take place is expected to be based in substantial part on the allegations against former Officer … that are the subject of the internal affairs investigation report that the Town submitted to POST and which, to the best of the Town’s knowledge, was utilized and relied upon by POST in connection with its preliminary inquiry into those allegations, said report is currently exempt from public disclosure pursuant to 555 CMR 1.03 and G.L. c. 6E, §8(c)(2), as that regulation and statute respectively operate through Exemption (a) of the Public Records Law.” Despite the Town’s response, it remains uncertain how the above referenced statute and regulation of the POST Commission permit the Town to withhold the internal affairs investigation report from disclosure under Exemption (a) of the Public Records Law. Consequently, I find the Town has not met its burden to specificity to withhold the record under Exemption (a) of the Public Records Law. Conclusion Accordingly, the Town is ordered to provide a response to Mr. Lyons, in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic

Rebecca J. Harris, PhD. SPR24/2333 Page 4 September 3, 2024 copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Keith Lyons