Mitchell Kosht v. Lincoln, Town of - Police Department (SPR 20242660)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 3, 2024 SPR24/2660 Sean E. Kennedy Chief of Police Lincoln Police Department 169 Lincoln Road Lincoln, MA 01773 Dear Chief Kennedy: I have received the petition of Attorney Mitchell Kosht appealing the response of the Lincoln 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 September 10, 2024, Attorney Kosht requested the following: All investigatory reports, summary memoranda, witness statements, or other internal documents related to the sustained internal affairs complaint(s) against [a named police officer] for incidents occurring on or about August 12, 2021, as listed in the Peace Officer Standards and Trainings Database of Sustained Allegations and Disciplinary Actions by Agency (Allegation #: A- A-00003086; A- 00003087). The Department responded on September 20, 2024, denying the request, and claiming that the responsive records are exempt from disclosure under Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). Unsatisfied with the Department’s response, Attorney Kosht petitioned this office, and this appeal, SPR24/2660, 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

Chief Sean E. Kennedy SPR24/2660 Page 2 October 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. 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. 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 September 20th Response In its September 20, 2024 response, the Department cites Exemption (d) of the Public Records Law for withholding “the requested internal affairs records.” See G. L. c. 4, § 7(26)(d). Additionally, the Department explains that “in light of pending litigation between the individual referenced in the public records request and the Town at this time, the responsive records cannot be released.” The Department further elaborates that “after an individualized review of the requested documents, the records requested are directly related to pending litigation matters involving the Town and the individual identified in [the] request.” 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. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Attorney Kosht’s request, is active and ongoing in the Massachusetts Superior Court. See Matthew Forance v. Town of Lincoln, et al., (Middlesex County Superior Court Docket No. 2381-CV-02312 (Nov. 9, 2023)). 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). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Chief Sean E. Kennedy SPR24/2660 Page 3 October 3, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Mitchell Kosht, Esq.