Billiel, Michael v. University of Massachusetts Amherst - Police Department (SPR 20150269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 14,2015 SPRlS/269 Chief John Horvath University of Massachusetts Amherst- Police Department 585 East Pleasant Street Amherst MA 01003-9600 Dear Chief Horvath: I have received the petition ofMichael J. Billiel appealing the response of the University of Massachusetts Amherst- Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Billiel requested copies of an internal affairs investigation regarding a complaint filed against a specifically identified Department officer, including copies of all interviews and audio recordings of any interviews conducted during the investigation. In a response dated March 20, 2015 the Department denied his request in its entirety stating the records are exempt as personnel records. The Department provided no further information and in addition the Department failed to specifically cite any Exemption to the Public Records Law for the withholding of the records. See G. L. c. 4, § 7(26)(c). 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). The Public Records Law states that "the burden shall be upon the custodian to prove with spec?ficity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also 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). The response by the Department did not contain the specificity required in a denial of access to public records. Accordingly, the Department is advised that to comply with the Public Records Law and its Access Regulations it 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 the requested records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Chief John Horvath SPR15/269 May 14, 2015 Page Two In your March 20 letter you contend that the records related to the investigation of are exempt from disclosure pursuant to the first clause of Exemption (c) of the Public Records Law. Exemption (c) 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) 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 creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." ld. at 434. The Supreme Judicial Court of Massachusetts has found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). ld. Historically, this office has broadly interpreted the personnel exemption; however, based a 2003 holding by the Appeals Court of Massachusetts, this exemption requires a more narrow interpretation. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003); subsequent review denied by the Supreme Judicial Court. The nature of some materials and the context in which they arise take them beyond what the Legislature contemplated when exempting "personnel [file] or information." Worcester Telegram & Gazette ·~'58 Mass. App. Ct. at 9. 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 affairs 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.

Chief John Horvath SPR15/269 May 14,2015 Page Three 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 police essential to law enforcement and 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). 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 ~'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.

Chief John Horvath SPR15/269 May 14,2015 Page Four Accordingly, whereas I find the Department has not satisfied its mandatory burden of specificity, the Department is hereby ordered to provide Mr. Billiel with the responsive records. If the Department maintains that any portion of the responsive records are exempt from disclosure it must within ten (1 0) days provide to Mr. Billiel a written explanation, with specificity, how a particular exemption applies to each record. Such an explanation must be accompanied by a custodial index. See 950 C.M.R. 32.08(7). This administrative appeal is now closed. lliams Supervisor of Records cc: Mr. Michael J. Billiel