Jim Haddadin v. Framingham, Town of - Police Department (SPR 20160763)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/763 Mr. Christopher J. Petrini, Esq. Town of Framingham Office of the Town Counsel 3 72 Union A venue Framingham, MA 01702 Dear Attorney Petrini: I have received a petition from James Haddadin, a reporter for the Metrowest Daily News appealing the response of the Town of Framingham-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. Haddadin requested a copy of: 1. All records describing the findings of any audits of the Department's evidence room conducted between January 1, 2015 through the date of the request (SPR16/320); and 2. All internal affairs investigation records created or received by the Department since January 1, 2015 pertaining to either a specifically identified former officer or the disappearance and/or theft of money from the Department's evidence room (SPR16/336). Records responsive to Request 1 The Department provided Mr. Haddadin with reports from audits conducted by the Department in January 22, 2015, April 23, 2015 and June 30, 2015. Your June 21, 2016 letter explained that one of the reports has been redacted pursuant to Exemption (c ) of the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Christopher J. Petrini, Esq. SPR16/763 Page 2 October 4, 2016 Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § lO(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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, § lO(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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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 fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to 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 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 provided in this determination for further information. Exemption (c) - Request 1 The Department had provided one of the audit reports in redacted format pursuant to Exemption ( c) of the Public Records Law. Your June 21 letter explained that certain of the information in one of the audit reports responsive to request number 1 was redacted to remove identifying information of a juvenile defendant pursuant to the second clause of Exemption ( c ). 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)

Mr. Christopher J. Petrini, Esq. SPR16/763 Page 3 October 4, 2016 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 second clause of Exemption (c ) does not protect all data relating to specifically named individuals. Rather, it only permits custodians of records to withhold "intimate details of a highly personal nature." Attorney Gen. v. Assistant Comm'r of the Real Prop. Dep't of Boston, 380 Mass. 623, 625 (1980). Examples of "intimate details of a highly personal nature," include marital status, paternity, substance abuse, government assistance, family fights and reputation. Id. at 626 n.2. Portions of records containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979). The second clause of Exemption ( c) requires record custodians to perform a two-step analysis to show cause for withholding information from disclosure. Record custodians must first address the threshold issue of whether the requested information constitutes an "intimate detail of a highly personal nature." If the requested information does not fit this description, then the second clause of Exemption (c) does not apply. If, however, the requested information does constitute "an intimate detail of a highly personal nature," the record custodian must then determine whether the public interest in disclosure outweighs the privacy interest associated with the disclosure of the information. The subject of one of the reports provided to you is a juvenile defendant, so the Department redacted the identifying information of the juvenile to protect individual privacy under the second clause of Exemption ( c ). Please be advised that disclosure of information concerning minor children is restricted in a variety of contexts. The Commonwealth of Massachusetts Legislature has taken great care and enacted legislation to protect the privacy of minor children. See G. L. c. 119, § 60A (records in cases of delinquency shall be withheld from public inspection); G. L. c. 51, §§ 4(a), 4(d) (the Street Lists, restricting information of children aged 3-17); G. L. c. 71, § 34D (allowing the Board of Education to adopt regulations limiting access to student records); see also Commonwealth v. Ferrara, 368 Mass. 182, 188 (1975). Therefore, I find all identifying information of a juvenile defendant who is the subject of one of the reports has been properly withheld pursuant to the second clause of Exemption (c). Exemption (/) - Request 1 In your June 21, 2016 response to Mr. Haddadin's public record request, you explained that the Town will withhold two investigation reports of two audits conducted in 2015 pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials

Mr. Christopher J. Petrini, Esq. SPR16/763 Page4 October 4, 2016 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) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 3 71 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979). The Department is withholding two reports of audits conducted in 2015 pursuant to Exemption (f) due to an on-going investigative activities and release could impede or taint the investigation being conducted by the Office of the Attorney General. Your June 21 letter also states that no internal affairs investigations were conducted regarding the evidence room and/or theft of money from the Department's evidence room. There are no records responsive to Request Number 2 because there were no "internal affairs" investigations regarding the evidence room or a specifically-named Department Officer. The matter was not handled by Professional Standards, but instead, the Detective's Bureau, which is operating under the direct control of the Office of the Attorney General (AGO). It is the AGO that is overseeing the investigation. You further explained that the records regarding the ongoing .evidence room investigation are in the custody and control of the AGO, and that the matter has been assigned a criminal case incident number. Accordingly, I find that the Department has now met its burden of explaining its Exemption (f) claim, and may properly withhold the reports under Exemption (f). Summary I find the Department has now met its statutory obligation of providing Mr. Haddadin with copies of audit reports from January 22, 2015, April 23, 2015 and June 30, 2015, and for specifically explaining Exemption (c) and (f) claims to withhold certain of the records under the Public Records Law. Accordingly, whereas the Department has properly withheld certain of the records pursuant to Exemptions (c) and (f), this administrative appeal is closed. Mr. Haddadin is advised that he may again request records currently withheld under Exemption (f) at the conclusion of any ongoing investigation.

Mr. Christopher J. Petrini, Esq. SPR16/763 Page 5 October 4, 2016 cc: Mr. Jim Haddadin Mr. Brian E. Simoneau