Mike Beaudet v. Haverhill, City of - City Solicitor's Office (SPR 20160200)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 29,2016 SPR16/200 Mr. William D. Cox, Jr., Esq. 145 South Main Street Bradford, MA 01835 Dear Attorney Cox: I have received the petition of Mike Beaudet of WCVB-TV 5 appealing the response of the City of Haverhill-City Solicitor on behalf of the Haverhill Police Department (Department) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet "copies of all [Department] internal investigations of [two specifically identified Department Police Officers]. The Department provided a fee estimate for provision of responsive records related to the first officer. With respect to the second officer, the Department denied Mr. Beaudet's request, stating that the Department "may or may not have," further stating that any records "if they do exist, would be exempt from disclosure pursuant to exemptions (a) and (c) to the Public Records Law. G. L. c. 4, § 7 (26) (a), (c); G. L. c. 214, § lB. Mr. Beaudet appealed the denial of access to records regarding the second named officer. 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The City has not met its burden of proving how and why Exemptions (a) and (c) of the Public Records apply to withhold the responsive records in their entirety. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. William D. Cox, Jr., Esq. SPR16/200 Page 2 March 29, 2016 Exemption (a) In its March 17, 2016 email response the Department indicated its intent to withhold the records pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) (a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The Department claims that the release of the responsive records is restricted pursuant to G. L. c. 214, § lB. The statute provides: A person shall have a right against umeasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages G. L. c. 214, § 1B This office has no jurisdiction to rule on the applicability of this statute. Decisions regarding whether privacy rights have been violated under this statute are the jurisdiction of the superior court, therefore, this is not a valid application of Exemption (a). To operate through Exemption (a), a statute must specifically or by necessary implication exempt records from public disclosure. G. L. c. 4, § 7 (26)(a). Clearly, there is no language in G. L. c. 214, § 1B that "specifically" exempts records from disclosure. Furthermore, the statute does not establish a basis "by necessary implication" to withhold the records. I must conclude that G. L c. 214, § IB does not operate through Exemption (a) of the Public Records Law to permit the withholding of records. The Department failed to acknowledge whether responsive records exist for this portion of Mr. Beaudet's request. The above statute provides no basis for the Department to refuse to acknowledge whether any responsive records exist.

Mr. William D. Cox, Jr., Esq. SPR16/200 Page 3 March 29, 2016 Exemption (c) -internal affairs records are public records, subject to redaction In its denial of the second portion of Mr. Beaudet's request the Department also cited Exemption (c), the so-called privacy exemption to the Public Records Law. Massachusetts courts have found that internal affairs records may not be withheld entirely under this exemption. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003); subsequent review denied by the Supreme Judicial Court. This office is unable to make a determination as to the status of responsive records, as the Department failed in its duty to acknowledge whether records exist. Further, the Department failed to cite Exemption (c) with specificity. The Department's response merely cites the exemption, providing the full language from the exemption itself with no explanation. Exemption (c) does not automatically render records exempt in their entirety. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any existing responsive record, even if partially exempt, may contain some non-exempt information. If so, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10 ( a). Order I find the Department has failed to properly respond to a request for public records. Accordingly, the Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Beaudet with a response to the request, prepared 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 it must, within ten (1 0) days provide to Mr. Beaudet 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 of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a detailed 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 ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the City in responding to requests for public records I advise a review of our publication, A Guide to the Massachusetts Public Records Law. This document is 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

Mr. William D. Cox, Jr., Esq. SPR16/200 Page 4 March 29, 2016 Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records La up n request. Please contact my office directly at the telephone number below for further in o illiams cc: Mr. Mike Beaudet Deputy Police Chief Anthony Haugh