Mike Beaudet v. Lakeville, Town of - Fire Department (SPR 20160255)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A. Williams Supervisor of Records

April 27, 2016 SPR16/255

Ms. Michele E. Randazzo, Esq.

Legal Counsel for the Town of Lakeville Kopelman and Paige, P.C.

101 Arch Street, 12" Floor

Boston, MA 02110

Dear Attorney Randazzo:

I have received the petition of Mike Beaudet of WCVB-TV Channel 5 Boston appealing the response of the Town of Lakeville — Fire Department (Town) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet requested a copy of all complaints filed, as well all internal investigations against a specifically-named former Town Fire Department employee. The Town denied Mr. Beaudet’s request pursuant to Exemptions (c) and (f) of the Public Records Law. Mr. Beaudet appealed.

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).

Exemption (c)

The Town claims that the responsive complaint may be withheld under the personnel clause of Exemption (c) of the Public Records Law. Exemption (c) permits the withholding of:

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre

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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 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.

Your letter on behalf of the Town, as its Legal Counsel explains that the Town considers the record to be personnel information that is exempt from disclosure due its disciplinary nature. The Town based its decision on whether to continue an employment relationship between the Town and the employee in question. In a telephone conversation with a member of my legal staff, you explained that the complaint, a communication made by one employee against a specifically-named employee was handled strictly as a personnel matter. You explained that there was no formal internal investigation process, and no investigation report was generated. As a result of the allegations in the complaint, the Town renders a personnel decision and the individual is no longer employed by the Town. I find that the Town has shown that the responsive complaint may be withheld pursuant to the personnel clause of Exemption (c).

The Town has claimed that the second clause of Exemption (c) also applies to withhold the personnel complaint due to the sensitive nature of the allegations and the possible effect on the reputation of both the complainant and the former employee. The second clause of Exemption (c) covers information relating to a specifically-named individual, disclosure of which may constitute an unwarranted invasion of personal privacy. The privacy clause protects “intimate details of a highly personal nature.” Whereas, the Town has satisfied the burden of proving that the personnel clause applies to withhold the record in its entirety, I decline to opine on the second clause of Exemption (c) and the Town’s Exemption (f) claim.

Internal affairs investigations In his petition Mr. Beaudet cites a Supervisor of Records Bulletin to support his

contention that the records he seeks are public. See SPR 03/04 www.sec.state.ma.us/arc/arcrmu/rmubul/bul304.htm. Mr. Beaudet is correct in his assertion that

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records regarding internal affairs investigations are public records, subject to mandatory disclosure. 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 Court in Worcester found that internal affairs investigation records are different from ordinary disciplinary records.

The Court’s holding in Worcester is not applicable in the present matter, as Mr. Beaudet’s request is not related to a police officer. Mr. Beaudet’s request is for records of a member of the Town’s Fire Department. The Court’s findings in Worcester are clearly applicable only to the specific process of internal affairs investigations for police officers.

Conclusion

For the reasons discussed above, I find the Town has met its burden to withhold the entire complaint and any personnel file records regarding the complaint against a former Town employee under the personnel clause of Exemption (c). Accordingly, I consider this administrative appeal closed.

To assist in requesting and responding to requests for public records I advise a review of 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. Please contact my office directly at the telephone number below for further information.

cc: Mr. Mike Beaudet Chief Daniel Hopkins, Lakeville Fire Department