Craig Tavares v. Kingston, Town of - Police Department (SPR 20252080)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 29, 2025 SPR25/2080 Michael Skowyra Detective Lieutenant Kingston Police Department 244 Main Street Kingston, MA 02364 Dear Lieutenant Skowyra: I have received the petition of Craig Tavares, Esq., on behalf of Michael Hand, appealing the response of the Kingston 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 July 8, 2025, Attorney Tavares requested, “[a]ny Kingston Police reports, including FIOs, involving [an identified individual] (DOB: 1/23/57), my client who I currently represent.” The Department provided a response on July 11, 2025. Unsatisfied with the response, Attorney Tavares petitioned this office and this appeal, SPR25/2080, was opened as a result. Subsequently, the Department provided a supplemental response on July 17, 2025. 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Michael Skowyra SPR25/2080 Page 2 July 29, 2025 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. Current Appeal In his appeal petition, Attorney Tavares stated, It is the Petitioner’s position that under Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976), it is irrelevant to the public records analysis that CPCS represents Mr. Hand in a pending criminal matter. In Bougas, the Court recognized that some of the plaintiffs who made the public records requests had pending criminal cases. Id. at 64. The Court, however, asserted ‘this fact neither detract[ed] from nor len[t] support to the request of those plaintiffs for disclosure under G. L. c. 66, § 10.’ Id. The Court effectively concluded that the reason for requesting the documents is not relevant to whether a record must be disclosed under the public records law. Id. (position of plaintiffs not enhanced by existence of criminal charges). Therefore, under Bougas, a criminal defendant is entitled to the same as any other member of the public. The Department’s July 11th and July 17th Response In its July 11, 2025 response, the Department states: Your request for records relevant to Mr. Hand was forward to my attention to address, as I oversee Public Records for Kingston PD… You noted the open Homicide case. It does not matter who was the primary investigating agency or who compiled the records, at the end of the day, the Commonwealth has an open case and the records are relevant to that case and the exemption aims at the exact thing underlined above as the intent noted by the SJC. Again, our position is that these are not PUBLIC record at this time due to the open case. If you represent Mr. Hand in some way (which I have no way of confirming via an email address if you are his attorney or not), you may be entitled to your requested records but not through public records. If you are looking for records that you feel are relevant for your case, go through the proper method, which is the discovery process. The Commonwealth, and/or the court, will have them turned over if they feel it is pertinent…. In its supplemental response on July 17th, the Department states, “it is the police department’s position that it would be appropriate for your office to deny the appeal … as the records in question are relative to active litigation (1883CR00180 - Open Homicide Case which

Michael Skowyra SPR25/2080 Page 3 July 29, 2025 has not yet gone to trial). 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. In light of the ongoing litigation, Commonwealth v. Hand, Michael (1883CR00180), I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Craig Tavares, Esq.