Becker, John v. Rockport, Town of - Police Department (SPR 20140482)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 10,2014 SPR14/482 Mr. Darren R. Klein, Esq. Kopelman & Paige, P.C. 101 Arch Street, Iih Floor Boston, MA 02110 Dear Attorney Klein: I have received the petition of John M. Becker, Esq. appealing the response of the Rockport Police Department (Department) to his request for public records. G. L. c. 66 § IO(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Becker requested copies of the disciplinary investigations that were conducted of two specifically identified police officers. In a written response you denied the request, stating that the Department would withhold responsive records pursuant to Exemptions (a), (c) and (f) of the Public Records Law. G. L. c. 4, § 7 (26) (a), (c), (f); G. L. c. 214, § lB. Exemption (a) The applicability of Exemption (a) is first considered. This exemption allows for the withholding of records which are: specifically or by necessary implication exempted from disclosure by statute G.L. c. 4, § 7(26)(a) A governmental entity may use Exemption (a) as a basis for withholding requested materials where the language ofthe exempting statute suggests that the public's right to inspect records under the Public Records Law is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Darren R. Klein, Esq. SPR14/482 Page Two October 10, 2014 In your response you state that the Department believes the release of the responsive records is restricted pursuant to G. L. c. 214, § lB. The statute provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § IB This office has no jurisdiction to rule on the applicability of this statute. Decisions regarding whether privacy rights have been violated under this statute are the jurisdiction of the superior court, therefore, this is not a valid application of Exemption (a). To operate through Exemption (a), a statute must specifically or by necessary implication exempt records from public disclosure. G. L. c. 4, § 7 (26) (a). Clearly, there is no language in G. L. c. 214, § IB that "specifically" exempts records from disclosure. Furthermore, the statute does not establish a basis "by necessary implication" to withhold the records. I must conclude that G. L c. 214, & IB does not operate through Exemption (a) of the Public Records Law to exempt the requested records. Exemption (c) Exemption (c) is further considered and applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c) This exemption contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel and medical information regarding a specifically identified person. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). The second clause protects intimate details of a highly personal nature regarding a specifically identified person, requiring a balancing of the public's right to know against the relevant privacy interest. Att'y Gen. v. Ass't Comm'r of the Real Property Dep't of Boston, 380 Mass. 623, 625 (1980). The types of personal information the second clause of this exemption is designed to protect includes, but is not limited to marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id.at 626 n. 2.

Mr. Darren R. Klein, Esq. SPR14/482 Page Three October 10, 2014 While disciplinary documentation will generally fall within the personnel exemption, the nature and character of information included within internal affairs investigation records requires further consideration. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). The internal affairs process exists specifically to addresscomplaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship between the police and citizemy that is essential to law enforcement. Worcester at 12. In addition, the nature and character of materials compiled during an internal investigation, such as witness interview summaries and an internal affairs report, are substantially different from the types of personnel records contemplated by the legislature as exempt from disclosure. Worcester at 15. The nature of the allegation and subsequent investigation is not as relevant as the investigation process itself in determining whether the records are analyzed under Wakefield or Worcester. William A. Leeman v. Alan N. Cote as Supervisor of Records, 21 Mass.L.Rep. 411, 16 (2006). The citizenry's full and fair assessment of a police department's internal investigation of a law enforcement officer's actions promotes the core value of trust between citizens and police that is essential to law enforcement and the protection of constitutional rights. Worcester at 12. In an October 2, 2014 email to an attorney on my staff, you explain that the investigation related to an internal matter involving two police officers. As such, you maintain that the disclosure of the internal affairs investigation records may be harmful to the Department. It is important to note that the classification of the investigation does not lessen the public's right of access to the records. Leeman at 15-16. The Appeals Court in Worcester held that officers' reports, witness interview summaries, and the internal affairs report were not part of a "personnel file or information" exempt from disclosure under Exemption (c), as these documents related to the workings and determinations of the internal affairs process whose quintessential purpose is to inspire public confidence. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7 The Appeals Court in Worcester also held that any memoranda from the investigating authority, issued directly to the investigated officer, detailing the findings of the investigation and conclusions reached, may be withheld under Exemption (c). The Appeals Court found that this memoranda was within the core category of personnel information useful in making employment decisions regarding the employee, and was exempt from disclosure pursuant to the first clause of Exemption (c) as part of a "personnel file or information." Other reports, witness interview summaries and related records must be provided to members of the public upon request.

Mr. Darren R. Klein, Esq. SPR14/482 Page Four October 10, 2014 Exemption (f) The applicability of Exemption (f) is also considered and applies to: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f) This exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chie(o(Police, 371 Mass. 59, 62 (1976). Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd, 388 Mass. 427, 438 (1983). In your response, you stated that the disclosure of witness and/or complainant names and identifying information may deter other individuals from providing information with respect to future investigations. It is my finding that the applicability of Exemption (f) supports such a finding that witness and/or complainant names and identifying information may be permissibly redacted. In your response, you also stated that the names and identifying information of witnesses and/or complainants are "so inextricably intertwined in the requested documents" that these records may be withheld in their entirety. The Department has not met its burden in explaining why these records may not be redacted in a manner that will protect the identities of these individual. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). I find you have not met your burden to withhold these statements in their entirety.

Mr. Darren R. Klein, Esq. SPR14/482 Page Five October 10, 2014 Accordingly, it is the finding of this office that the responsive records are public and subject to mandatory disclosure, but may be redacted in a manner consistent with the Public Records Law and this determination. The Department is hereby ordered to provide Attorney Becker with copies of the responsive records within ten (1 0) calendar days. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. This administ ative appeal is now closed. Supervisor of Records cc: Mr. John M. Becker, Esq. Chief John T. McCarthy