Billiel, Lisa v. University of Massachusetts Amherst - Police Department (SPR 20150591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPR15/591; SPR15/592; SPR15/593 Mr. Nathan P. LaVallee, Esq. Associate General Counsel -Amherst Office of the General Counsel University of Massachusetts 309 Whitmore Administration Building Amherst, MA 01003 Dear Attorney LaV allee: I have received the petitions of Michael Billiel and Lisa Billiel, formerly known as Lisa Kidwell, appealing the responses of the University of Massachusetts Amherst-Police Department (Department) to their requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Billiel and Mrs. Billiel made three (3) separate public records requests to the Department for records related to an investigation, including audio recordings pertaining to specifically identified interviews as well as a copy of the investigation file. Previous Determinations These requests were the subject of previous appeals. See SPR15/1 00 Determination of the Supervisor of Records (April16, 2015); SPR15/101 Determination of the Supervisor of Records (April16, 2015); SPR15/269 Determination ofthe Supervisor ofRecords (May 14, 2015). In each of these Determinations, I found the Department had not met its burden to withhold records and ordered it to provide Ms. Billiel or Mr. Billiel, respectively, with the responsive records or an explanation, with specificity, of how the responsive records remain exempt under the Public Records Law. In two (2) separate letters dated April28, 2015, the Department provided responses to the April 16 Determinations. The Department provided a response to the May 14 Determination in a letter dated June 5, 2015. Mr. Billiel and Ms. Billiel appealed each ofthese responses and this office opened three (3) new appeals. See SPR15/591; 15/592; 15/593. Whereas each ofthese appeals concern the same investigation, I address each appeal in this Determination. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Nathan P. LaVallee, Esq. SPR15/591, SPR15/592, SPR15/593 Page Two December 7, 20 15 The Department's response The Department's responses dated April 28 are identical. In each, Chief Horvath denied these requests, claiming that the responsive records may be withheld under the first clause of Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). The Department's June 5 letter provides greater detail regarding the Department's position that the responsive records are exempt from disclosure under Exemption (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 specificity 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); Flatley, 419 Mass. at 511. Exemption (c) Exemption (c) permits the withholding of: 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." Id. at 434. The Supreme Judicial Court of Massachusetts (Court) 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). Id.

Mr. Nathan P. LaVallee, Esq. SPR15/591, SPR15/592, SPR15/593 Page Three December 7, 2015 The Court held that officers' reports, witness interview summaries, and the internal affairs report were not part of a "personnel file or information" as these documents relate to the workings and determinations of the internal affairs process whose quintessential purpose is to inspire public confidence. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 7 (2003). The Court also held, however, that any memoranda from the investigating authority, issued directly to the investigated officer, detailing the findings of the investigation and conclusions that were reached, may be withheld under Exemption (c). The Court found that the 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. In your June 5 letter to Mr. Billiel, you claim the responsive records "are part of an internal employment investigation and not an IA investigation." The Department claims "the records you have requested do not stem from a citizen complaint or from an investigation conducted in accordance with [the Department's] formalized citizen complaint. ..." You further state "the records you have requested are the product of a routine employment investigation that was conducted by the Chief of Police with the assistance of outside counsel." You argue that, as a result, the responsive records are exempt from disclosure under the personnel clause of Exemption (c). This response is not consistent with prior communications between the Department and Mr. Billiel. In a September 17, 2014 response to Mr. Billiel's request for a copy of the audio recording, UMass Police Detective Lieutenant D. White stated that Mr. Billie! would need to request the record directly from the Chiefs Office, as the Lieutenant did "not have the authority to make the decision to release a recording that is part of an IAfile" (emphasis added). Also, in a January 7, 2015 letter to Mr. Billie!, Chief Horvath referred to the investigation as an internal affairs investigation, stating that the investigation, "an Internal Affairs Investigation, 14-7-IA, was completed" (emphasis added). In a January 16, 2015 memorandum to Mr. Billie!, Chief Horvath stated that the "memorandum is in response to [his] recent records request regarding 14-7-IA" (emphasis added). The complaint made by Mr. Billie! and Ms. Billie! warranted the assigning of an internal affairs investigation number and a review by the Chief of Police and outside counsel. Both the Chief and a Department Lieutenant referred to the matter by its assigned number, calling the matter an "Internal Affairs Investigation." The Court in Worcester held that records of such proceedings are public records, as the public is entitled to a "full and fair assessment" of such investigations. Worcester, 58 Mass. App. Ct. at 8, citing Globe Newspaper Co., 419 Mass. at 866.

Mr. Nathan P. LaVallee, Esq. SPR15/591, SPR15/592, SPR15/593 Page Four December 7, 2015 It is also important to note that neither the status of the citizen complainant nor the outcome of the investigation is relevant in determining whether such records are public. The fact that the Billiels were Officers of the Department at the time of the complaint does not diminish their status as citizens for public records purposes. Neither does the outcome ofthe present investigation. See Leeman v. Cote, 21 Mass. L. Rep. 411 (2006). Conclusion Whereas the Department has not overcome the presumption that the requested records are public, nor has the Department overcome the presumption that the records are part of an internal affairs investigation, the Department is hereby ordered, within ten (10) days of this order, to provide Mr. Billiel and Ms. Billiel with the records requested in each of the three (3) requests in a manner consistent with the Public Records Law. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to the Mr. Billiel and Ms. Billiel a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00 , custodian of records shall provide written good faith estimate). Once the fees are paid, you ust provide the responsive records. Supervisor of Records cc: Mr. Michael Billiel Ms. Lisa Billiel