Munro-Delotto, Esq., Paige v. Office of the Bristol County Sheriff (SPR 20150103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April15, 2015 SPRlS/103 Ms. Lorraine J. Rousseau, Esq. Office of the Bristol County Sheriff 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Page Munro-Delotto, Ph.D. Esq., appealing the response of the Bristol County Sheriff(Sheriff) to her January 7, 2015 request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Munro-Delotto requested records regarding a specifically identified "former probationary corrections officer." Attorney Munro Delotto also appealed the non-response of the Department to a request made on January 6, 2015, restated on March 25, 2015. This request sought copies of "Internal Affairs Investigation reports" and other records "relating to [the specifically identified former employee]." Appeal for Nonresponse to January 6 and March 25 Requests In letters dated January 16 and April3, 2015 the Sheriff responded to Attorney Munro Delotto' s requests. The April 3 response was provided subsequent to a telephone conversation with an attorney on my staff. I find the inclusion of the January 6 request in the Sheriffs April 3 response cures any issues associated with Attorney Munro-Delotto's appeal for nonresponse. Accordingly, this portion of Attorney Munro-Delotto's appeal is closed. Requirement to Advise Requester ofA dministrative Remedy When a records custodian denies access to records it must advise the requester of his or her remedies associated with denial of access. 950 C.M.R. 32.08(1) (custodian shall advise the person denied access of his or her remedies under 950 CMR 32.00 and G. L. c. 66, § lO(b)). In review of both responses it is clear the Sheriff failed to provide such information. Accordingly, the Sheriff is advised that it must provide information regarding remedies for requesters denied access to public records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Lorraine J. Rousseau, Esq. SPR15/103 Page Two April 15,2015 Response by Sherriff In your letters you denied the requests made by Attorney Munro-Delotto, stating that the records included personnel and investigatory information, exempt from disclosure. Further, you explained in your April3 letter that any responsive records would also include Criminal Offender Record Information, exempt from disclosure by statute. See G. L. c. 4, § 7 (26) (a), (c), (f); see also G. L. c. 6, §§ 167, 172. In her petition Attorney Munro-Delotto appealed the response by the Sheriff, as well as the failure by the Sheriff to notify her of her administrative remedies. In particular, Attorney Munro-Del otto stated the lack of specificity in the response by the Sheriff fails to meet the burdens of specificity to deny access to public records. Attorney Munro-Delotto further stated that personnel records related to certain law enforcement officers subject to internal affairs investigations are different in character from ordinary disciplinary records and must be disclosed. See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. 378 (2002). Appeal Limited to Records Requested It is important to note that in her petition Attorney Munro-Delotto changed the character of her requests to break down from specific to general. The January 7 request sought "Documentation regarding [a specific former employee's] violation of the Sherriffs [sic] Office Policies and regulations, including, but not limited to, violations related to personal conduct, security and work performance." Attorney Munro-Delotto also requested "other information, documents and/or communications related to any alleged misconduct by [the specific former employee's] and/or any alleged breach ofSherriffs [sic] Office Policies and regulations and/or breach of any other employment policy documented by the Bristol County Sherriff [sic] Department." In her petition for appeal Attorney Munro-Delotto sought to clarify her January 7 request to include records of violations of the Sheriffs office policies and procedures related to personal conduct, security and work performance, as well as records specific to the former employee identified in her request. It is clear that this request is for specific information regarding a particular employee, not a request for general information. Accordingly, this order will address only the Sheriff response to the actual request. Attorney Munro-Delotto may request general information records from the Sheriff, and if denied may appeal those response which will be addressed in a future administrative appeal to be opened in accordance with the Public Records Law and its Access Regulations. Government Records Presumed Public/Burden of Custodian 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

Ms. Lorraine J. Rousseau, Esq. SPR15/103 Page Three April15, 2015 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). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). 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, § IO(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The first response provided by the Sheriff did not contain the specificity required in a denial of access to public records. The second response, while being lengthier than the first response, still does not contain the specificity required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to each of the requested records. Denial ofA ccess Pursuant to First Clause of Exemption (c) Personnel Records Specifically Identifying Individual are Generally Exempt The Sheriff denied access to the records pursuant to Exemption (c), stating that the responsive records, relating to a specifically identified individual, are exempt personnel records. G. L. c. 4, § 7(26)(c); see also Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000) .. Exemption (c) 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. ofWestport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court has refined the analysis to be employed when considering the public record status of personnel records. The Court has defined personnel information that is "useful in making employment decisions regarding an employee" may be withheld pursuant to the first clause of Exemption (c) ofthe Public Records Law. The Court found that personnel information includes "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield at 798. Internal Affairs Personnel Records are Generally Public In her request Attorney Mumo-Del otto requested records she identified as "Internal Affairs Investigation reports." Attorney Mumo-Delotto referred to the former employee who is the subject of the responsive records as a "probationary corrections officer;" however, it is

Ms. Lorraine I. Rousseau, Esq. SPR15/103 Page Four April15, 2015 unclear whether any responsive disciplinary records would be considered internal affairs records. Similarly, the responses by the Sheriff do not clarify whether responsive records include internal affairs records, or whether the records are ordinary disciplinary and personnel records that may be exempt under the Wakefield analysis. Records of an internal affairs investigation conducted by a law enforcement agency were held by the Appeals Court not to be exempt personal information given the import of maintaining the public's trust through the transparency of the internal affairs process. Worcester Telegram & Gazette Corporation v. ChiefofPolice of Worcester, 436 Mass. 378,383 (2002). This is distinguished from ordinary disciplinary records that are exempt from disclosure pursuant to the first clause of Exemption (c). The Appeals Court in Worcester contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" for other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police internal affair investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints 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 of trust and confidence between the police and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the public's trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry's full and fair assessment of a police department's internal investigation of its officer's actions promotes the core value of trust between citizens and policeeS£entialio_la:w_enfm_c_e_m_e_n_t_an_d the protection of~-­ constitutional rights. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added).

Ms. Lorraine J. Rousseau, Esq. SPR15/103 Page Five April15, 2015 It is clear from the definitions above that records that are the product of such an investigation into the conduct of a law enforcement official are public records. 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 "notice from the disciplining authority to the particular employee advising of the disciplinary decision" 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." Worcester Telegram & Gazette .QQm, 58 Mass. App. Ct. at 16, 17. Other reports, witness interview summaries and related records must be provided to members of the public upon request. While it is the finding of this office that internal investigation records may not be withheld as personnel records, this does not preclude a governmental entity from applying other exemptions from the Public Records Law to redact or withhold portions that ought to be so withheld. While the records do relate to a specifically identified person, the responses of the Sheriff do not specify whether the records contain internal affairs information or are related to general disciplinary information. Accordingly, I find the Sheriff has failed to meet its burden of specificity under the Public Records Law. Denial ofA ccess Pursuant to Second Clause of Exemption (c) The second clause of Exemption (c) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of"intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a~t(i_!llO_t:l_!!!_:Qublic interest in disclost1re. Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 154 (1979). ------ The second clause of Exemption (c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then

Ms. Lorraine J. Rousseau, Esq. SPR15/103 Page Six April 15,2015 the second clause ofExemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. The responses of the Sheriff do not contain such a determination as to whether the records contain "intimate details." Accordingly, the Sheriff has failed to meet its burden of specificity under the Public Records Law with respect to the second clause of Exemption (c). Denial ofA ccess Pursuant to First Clause of Exemption (f) In the April 3 response you indicate the Sheriff intends to withhold all responsive records pursuant to Exemption (f), the investigatory exemption of the Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: 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) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner ofBoston, 378 Mass. 281,290 n.l8 (1979). The responses by the Sheriff merely recite the language from the exemption, failing to provide any specificity to support nondisclosure. Accordingly, I find the Sheriff has failed to meet its burden of specificity with respect to its Exemption (f) claim. Criminal Offender Record Information (COR/) ~-~----~ --- The April 4 response indicates the Sheriff intends to withhold portions of the responsive records containing Criminal Offender Record Information (CORI). G. L. c. 6 §§ 167, 172. While CORI is exempt from public disclosure during the lifetime of the person the CORI identifies, the response of the Sheriff provides no information to support such a withholding claim. Accordingly, I find the Sheriff has failed to meet its burden of specificity with respect to its CORI claim.

Ms. Lorraine J. Rousseau, Esq. SPR15/103 Page Seven April15, 2015 Access to Personnel Records by Subject of Record It is not clear by review of the requests and appeal whether Attorney Munro-Delotto represents the party who is the subject of the records. Under the Public Records Law the personal status of a requester does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). If Attorney Munro-Delotto does represent the subject of the records, her client may be able to access them directly if it is part of the personnel file. Employees are statutorily entitled to inspect their own personnel file, and may do so by contacting the employer directly. See G. L. c. 149, § 52C (any employer receiving a written request from an employee shall provide the employee with an opportunity to review his personnel record within five business days of such request). This manner of receiving the records may be preferable to subjects of disciplinary records, as the records remain confidential, whereas records determined to be public through a request for public records will be made available for anyone to view. Please note that this office does not have enforcement power for records requested by employees pursuant to the personnel records law. See G. L. c. 149, § 52C (This section shall be enforced by the attorney general). Order The Sheriff has failed to meet its burden of specificity in denying access to public records. Accordingly, the Sheriff is hereby ordered to review its records and provide a detailed written response to Attorney Munro-Delotto within ten (10) days, prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. If the Sheriff intends to withhold or redact any portion of the responsive r cords pursuant to a specifically stated exemption, Attorney Munro-Delotto must be provide ith a custodial index to support such withholding. See 950 C.M.R. 32.08(8). This admi s a e appeal is now closed. ours, I cc: Ms. Page Munro-Delotto, Esq.