Carrie DeAngelo v. Truro, Town of - Police Department (SPR 20160786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/786 Mr. David C. Jenkins, Esq. KP Law 101 Arch Street Boston, MA 02110 Dear Attorney Jenkins: I have received the petition of Carrie DeAngelo appealing the response of Town of Truro (Town) 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, on June 13, 2016 Ms. DeAngelo requested: 1. A copy a report and 2. a copy of a letter both authored by the Town's Chief of Police pertaining to her. On July 12, 2016 Attorney Patrick N. Bryant, on behalf of Ms. DeAngelo again requested copies of the same report and a letter. In a response to Attorney Bryant dated July 28, 2016 the Town denied his and Ms. DeAngelo's requests in their entirety citing to Exemptions (c), (d) and (f), the privacy, deliberative and investigatory exemption to the Public Records Law. G. L. c. 4, §26(c ),(d ),(f). Right ofA ccess Please note that the personal status of Ms. DeAngelo in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). It is important to note, however, that a person is statutorily entitled to inspect her own personnel file, and may do so by contacting her employer directly. See G. L. c. 149, § 52C (Any employer receiving a written request from an employee shall provide the employee with an opportunity to review his personnel record within five business days of such request). This office does not have enforcement power for records requested by employees pursuant to the personnel records law. See G. L. c. 149, § 52C. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. David C. Jenkins, Esq. SPR16/786 Page2 October 18, 2016 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). 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). 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. Request number 1 With respect to request number 1, from the Towns response it is unclear whether the responsive letter exists and or which exemption, if any, is specifically being claimed for its withholding. Request number 2 Exemption (f) With respect to request number 2, the Town explained that it would withhold the requested records 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 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) 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. Bou gas v. Chief ofP olice, 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). Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary

Mr. David C. Jenkins, Esq. SPR16/786 Page 3 October 18, 2016 witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd.. 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters they have witnessed. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). The disclosure of the names of voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of witnesses and complainants. In addition, any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness, may be withheld from disclosure. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983) (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). In its response the Town explained that due to the small number of individuals involved in the investigation and the matter at issue in the report, the report and related records may not be redacted in such a way so as to avoid the possibility that the unredacted portions of the records may indirectly identify these individuals. Accordingly, I find the Department has met its burden under Exemption (f) to withhold the responsive report. Order Accordingly, the Town is hereby ordered to provide Ms. DeAngelo and Attorney Bryant with a response to request number 1, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. cc: Ms. Carrie DeAngelo Patrick N. Bryant, Esq.