Robert A. Bertsche v. City of Newton -- City Solicitor (SPR 20160074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 4, 2016 SPR16/074 Ms. Donnalyn B. Lynch Kahn, Esq. City Solicitor City ofNewton Law Department 1000 Commonwealth A venue Newton, MA 02459 Dear Attorney Lynch Kahn: I have received the petition of Robert Bertsche, Esq. of Prince Lobel Tye, LLP on behalf of his client, Jonathan Dame of the Newton Tab appealing the response ofthe City of Newton Law Department (City) to a November 20,2015 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Dame requested a copy of four categories of records related to municipal employee application for worker compensation benefits and/or benefits provided to public safety employees, including compensation for medical bills. The City provided responsive records, including a redacted sample investigative report. The City denied access to any remaining responsive investigative reports and Attorney Bertsche appealed on behalf of Mr. Dame. Presumption that all government records are public; burden of specificity in denying access 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). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Donnalyn B. Lynch Kahn, Esq. SPR16/074 Page 2 March 4, 2016 Petition for appeal Initially, in a November 25, 2015 letter Assistant City Solicitor Julie B. Ross denied the request for investigation reports and other exempt records. To justify withholding these records Assistant City Solicitor Ross cited three exemptions to the Public Records Law. G. L. c. 4, § 7 (26) (b), (c), (f). In his petition to this office Attorney Bertsche explained that, upon receipt of the City's response and upon further communication between counsel for the requester and the City, the City provided a "sample redacted investigative report." In providing this sample the City explained that "[n]ot all investigations have corresponding reports." Upon receipt of this sample Mr. Dame requested the remaining responsive investigative reports. The City determined that "after reviewing the remaining reports," it would deny this request, as the reports "were all used in connection with discipline and personnel matters." The City further claimed that "there is no way to properly redact the reports and protect the identity of the individuals involved." Finally, "the City believes that the production of these reports, even if redacted, will prejudice the City's ability to properly investigate personnel matters and would therefore not be in the public interest." Attorney Bertsche appealed the withholding of the remaining responsive investigative reports. Exemptions cited by City, further review of custodial burden of specificity The City cited Exemptions (b), (c) and (f) of the Public Records Law in its initial denial of access to remaining records. Attorney Bertsche appealed only the nonprovision of investigative reports; therefore, it is difficult to determine which of the claimed exemptions are intended to apply to the investigative records, as these are not the only records subject to the City's denial of access. Exemption (b) Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, §7 (26) (b) For Exemption (b) to apply, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure.

Ms. Donnalyn B. Lynch Kahn, Esq. SPR16/074 Page 3 March 4, 2016 Exemption (f) Exemption (f), the so-called investigatory exemption, allows investigatory officials to withhold: 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 permits 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). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. 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). Exemption (f) also provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure ofthe Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976); cited with approval in Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289 (1979). (f). Exemption (c) Exemption (c), the so-called privacy exemption, 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

Ms. Donnalyn B. Lynch Kahn, Esq. SPR16/074 Page4 March 4, 2016 an unwarranted invasion of personal privacy G. L. c. 4, §7 (26) 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 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. Failure by City to explain the applicability of exemptions to investigative reports In a February 16 discussion with an attorney on my staff, you stated concern by the City that redaction of the investigative records may not be enough to protect the identity of the subjects of the records. You further stated that if the records were to be provided in redacted form the remaining content may only show fragments of sentences, rendering the records useless to the requester. Attorney Bertsche provided a copy of the sample investigative report with his petition. It is important to note that in his petition Attorney Bertsche did not object to the redactions contained in the representative sample investigative report. Order I find the City has failed to meet its burden of specificity in denying access to public records. Accordingly, the City is hereby ordered, within ten (10) days of this order, to provide Attorney Bertsche with the remaining responsive investigative reports, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion of the responsive records are exempt from disclosure the City must, within ten (1 0) days provide to Attorney Bertsche a written explanation, with specificity, how a particular exemption applies to each redacted portion ofthe responsive records. 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 of this response to this office at pre@sec.state.ma.us.

Ms. Donnalyn B. Lynch Kahn, Esq. SPR16/074 Page 5 March 4, 2016 If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the remaining responsive records. To assist in responding to requests for public I refer the City to our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. lease contact my office directly at the telephone number below for further information. illiams cc: Mr. Robert Bertsche, Esq.