Michael Gelinas v. Reading, Town of - Police Department (SPR 20161228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 30, 2016 SPR16/1228 Chief Mark Segalla Town of Reading- Police Department 15 Union Street Reading, MA 01867 Dear Chief Segalla: I have received the petition of Michael Gelinas appealing the response of the Town of Reading~ Police Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Gelinas requested a copy of a certain investigation findings, including a specified individual's statements. In a response dated December 2, 2016 the Department provided a responsive audiotape. The Department withheld the remaining responsive records under Exemption (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(c). 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, § 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 applitation 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Chief Mark Segalla SPR16/1228 Page 2 December 30, 2016 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. Right ofA ccess Please note that the personal status of Mr. Gelinas 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 should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Gelinas may wish to consider another means of seeking to obtain any existing responsive records. Exemption (c) In your December 2 letter you claim the withheld records are exempt from disclosure pursuant to the first and second clause of Exemption (c) ofthe Public Records Law. 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) 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

Chief Mark Segalla SPR16/1228 Page 3 December 30, 2016 (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. 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, 3 80 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 ofrecords containing such information are exempt unless there is a paramount public interest in disclosure. Attorney Gen. v. Collector of Lynn, 3 77 Mass. 151, 154 (1979). Police internal affairs investigation records It appears certain responsive records may involve police internal affairs investigations. The Appeals Court reasoned that openness in a police internal affairs investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the public's trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry's full and fair assessment of a police department's internal investigation of its officer's actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). The Appeals Court in Worcester held that officers' reports, witness interview summaries, and the internal affairs report were not part of a "personnel file or information" exempt from disclosure under Exemption (c), as these documents related to the workings and determinations

Chief Mark Segalla SPR16/1228 Page 4 December 30, 2016 oftheinternal affairs process whose quintessential purpose is to inspire public confidence. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7. The Appeals Court in Worcester also held that any memoranda from the investigating authority, issued directly to the investigated officer, detailing the findings of the investigation and conclusions reached, may be withheld under Exemption (c). The Appeals Court found that this "notice from the disciplining authority to the particular employee advising of the disciplinary decision" was within the core category of personnel information useful in making employment decisions regarding the employee, and was exempt from disclosure pursuant to the first clause of Exemption (c) as part of a "personnel file or information." Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 16, 17. Other reports, witness interview summaries and related records must be provided to members of the public upon request, subject to redaction under other exemptions from the Public Records Law. In the December 2 response you explained the Department withheld "the investigative findings, the statements of [an individual], and the disciplinary letter issued to [an individual]" under Exemption (c). You state "[t]he records you are seeking are personnel files or information" and "are also materials or data related to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy." In light of the Worcester decision, I find the Department has not met its burden to withhold the responsive "investigative findings" and "the statements of [an individual]" under Exemption (c). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). I understand an attorney on my staff contacted you and provided a copy of the file associated with this appeal. Order Accordingly, I will consider this administrative appeal closed with the proviso that the Department provide Mr. Gelinas a revised response made in compliance with this order, the Public Records Law, and its Regulations. It is preferable to send an electronic copy ofthis response to this office at pre@sec.state.ma.us. Mr. Gelinas may appeal the substantive nature of the Department's response with ninety (90) days. See 950 C.M.R. 32.08(2). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Gelinas