Louisa M. Moller v. Gloucester, City of - Legal Department (SPR 20170156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 15, 2017 SPR17/156 Charles J. Payson, Esq. General Counsel City of Gloucester Legal Department City Hall, 9 Dale A venue Gloucester, MA 01930 Dear Attorney Payson: I have received the petition of Louisa Moller of WBZ-TV appealing the response of the Gloucester Legal Department (Department) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Moller requested copies of internal affairs files for two specifically identified Gloucester police officers. In a letter dated November 3, 2016 you denied Ms. Moller access to the requested records, citing Exemption (f), and Ms. Moller appealed. I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior Law's provisions and regulations apply to this request and appeal. 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) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "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, § lO(c) (2016 ed.); 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. 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

Charles J. Payson, Esq. SPRl 7/156 Page2 February 15, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(a) (2016 ed.); see also 950 C.M.R. 32.06(2) (2016 ed.) (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/prepd£iguide.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 (I) In a November 3, 2016 letter responding to Ms. Moller's request, you deny access to the requested records pursuant to Exemption (f), the investigative exemption of the Public Records Law. G. L. c. 4, § 7(26)([). Exemption (f) 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)(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, 371 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). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. · In the November 3rd response, you state that "disclosure of these materials would, at this time, prejudice an ongoing investigation by law enforcement," but you did not specifically explain how disclosure of the requested records would "so prejudice the possibility of effective

Charles J. Payson, Esq. SPRl 7/156 Page 3 February 15, 2017 law enforcement that such disclosure would not be in the public interest." It is also unclear why the records must be withheld in their entirety, and why it is not possible to redact exempt portions and release the remainder. See Reinstein, 3 78 Mass. at 289-90 ( explaining that Exemption (f) "invites case-by-case consideration of whether access 'would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest .... "). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. Internal A.ffa irs Records are Generally Public Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" for other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police internal affair 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. Determination Subsequent to the intervention by a member of my staff, you agreed to provide Ms. Moller with a supplemental response addressing her concerns. I will now consider this administrative appeal closed with the proviso that this response is provided without delay. 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. ~·~ Rebecca S. Murray Supervisor of Records cc: Louisa Moller (via email)