Wallack, Todd v. Tewksbury, Town of - Police Department (SPR 20140674)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 20, 2015 SPR14/674 Deputy Chief JohnS. Voto Tewksbury Police Department 918 Main Street Tewksbury, MA 01876 Dear Deputy Chief V oto: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Tewksbury Police Department (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested copies of official departmental photos for two specifically identified Department officers. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). You denied this request, claiming the photos are personnel records, as the photos physically reside in the "personnel records files" of each individual. G. L. c. 4, § 7(26)(c ). Subsequent to the intervention of my staff you did, however, provide two related responsive records. Exemption (c) of the Public Records Law 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 applies to personnel information that is of a personal nature and relates to a specifically named individual. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court (Court) has refined the analysis when considering the public status of personnel records. The Court found government record custodians may withhold personnel information that is "useful in making employment decisions regarding an employee" pursuant to the first clause of Exemption (c) of the Public Records Law. Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The Court found that exempt personnel information might include "employment applications, employee work evaluations, disciplinary OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Deputy Chief JohnS. Voto SPR14/674 Page Two February 20, 2015 documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield at 798. The Court held that not all information maintained in a personnel file is subject to examination under the first clause of Exemption (c). Information maintained for the ordinary administration of employees does not constitute such personnel information. Wakefield at 799. Public employees have a diminished expectation of privacy with respect to public employment matters. George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985). Certain otherwise personal information may be public if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The substantial public interest in ascertaining the manner in which public officials perform their official duties may operate to lessen what is personal with respect to a public employee. Attorney General v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Company v. Clerk of the Third District Court of Bristol, 377 Mass. 404, 417 (1979). The Department withheld photographs of police officers from disclosure pursuant to the first clause of Exemption (c). I find the Department has not met its burden to show how these photos would be useful in making employment decisions regarding these employees. Further, the Department has not shown how the physical location of a record plays a direct role in classifying the records as exempt. Accordingly, the Department is ereby ordered, within ten (10) days ofthis order, to provide Mr. Wallack with the requeste / hotos. This administrative 1 appeal is now closed. · awn Supervisor ofRecords cc: Mr. Todd Wallack