Dan Glaun v. Springfield, City of (SPR 20170243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 10, 2017 SPR17/243 Edward M. Pikula, Esq. City Solicitor City of Springfield - Law Department 3 6 Court Street, Room 210 Springfield, MA O1 103 Dear Attorney Pikula: I have received the petition of Dan Glaun of MassLive appealing the response of the City of Springfield - Law Department (City) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Glaun requested a copy of the investigation reports of the City's Major Crimes Unit and Internal Affairs Unit regarding an incident on Island Pond Road on April 8, 2015. The City is withholding the records pursuant to G. L. c. 4, § 7(26)(a), (d) and (f) of the Public Records Law. Mr. Glaun appealed. 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, § lOA(d); 950 C.M.R. 32.03(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, § 1O (b )(iv), 950 C.M.R. 32.06(3); see also Dist. 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 portions of the record. Exemption (I) Your February 22, 201 7 response states that the City is withholding the internal affairs and major crimes unit records under Exemption (f) because the records will be used in the One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) ?27-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Edward M. Pikula, Esq. SPRl 7/243 Page2 March 10, 2017 hearing process regarding the disciplinary charges that the officers are entitled to under the Civil Service statute. You informed a Public Records Division attorney that the investigations are closed and the officers were notified of the disciplinary charges, but that the investigation records will be used by the Community Police Hearing Board (Board) during the disciplinary hearing process. At this time, no date has been set to commence the Board's proceedings; however, the City seeks to withhold the records until the hearings have concluded. 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)(f) A custodian ofrecords 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 Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). There is no evidence that disclosure of this information will prejudice the possibility of effective law enforcement. While the records may contain confidential investigative techniques or procedures, identities of voluntary witnesses, informants or complainants and diagnostic medical information, the records should be redacted, not withheld in their entirety. The investigations by the Police Department's Major Crime Unit and Internal Affairs Unit, as well as the Office of the Hampden County District Attorney (District Attorney) into the 2015 incident have been closed. The District Attorney rendered its conclusion on the underlying incident on February 2, 2017, and no criminal prosecution will be commenced. The City has not explained how release of these records would result in premature disclosure that would prejudice any investigation by the City or any prosecution by the District Attorney. Moreover, the officers who were the subject of the investigations were notified by the Police Department Commissioner, who is the appointing authority and who has already issued notices of disciplinary charges to the officers involved in the 2015 incident, as a result of the conclusion of the investigations. It is this "notice of disciplinary charges" that the Appeals Court in Worcester defines as "personnel information" that is not subject to disclosure and may be withheld by the City under Exemption (c). See Worcester Telegram and Gazette, 58 Mass. App. Ct. at 16, 17.

Edward M. Pikula, Esq. SPRl 7/243 Page 3 March 10, 2017 Seeing that the City has completed both the major crime and internal affairs investigations, and notified the officers of the disciplinary charges against them, the City has not established how it may withhold the investigation records in their entirety pursuant to Exemption (f). Exemption (d ) The City has also stated that it believes the investigation records should be withheld pursuant to Exemption ( d) due to a Civil Service hearing process that will commence in the near future. Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7 (26)(d ) Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (Purely factual matters used in the development of government policy are always subject to disclosure.) Your letter states that the 2015 incident that led to a Major Crimes Unit investigation, internal affairs investigation and District Attorney's investigation has been the subject of extensive pre-hearing publicity and community opinions. The City posits that the purpose of Exemption ( d) is to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision and release of the investigation records held by the City could taint the disciplinary hearing process. It is my understanding that the purpose of the civil service hearing process is to review the findings regarding the disciplinary charges, and whether the disciplinary charges should be sustained or overturned, not to reverse the facts and conclusions of the internal affairs and major crimes investigations. Further, the District Attorney released its investigation report, and the information on the incident is in the public realm. While the findings in an internal affairs investigation may contain the opinions or suggestions for the Police Commissioner to ponder regarding disciplinary action, the requested major crimes and internal affairs records may also contain factual information. The Police Commissioner has already taken those findings into

Edward M. Pikula, Esq. SPRl 7/243 Page4 March 10, 2017 account, and acted on them by notifying the officers of the disciplinary charges against them. While there may be deliberation of the Board as to the disciplinary charges, there appears to be no further deliberation on the Major Crimes report and the internal affairs investigation records. I find that the City has not met its burden in establishing that Exemption (d ) of the Public Records Law would allow for the withholding of these records in their entirety. Exemption (a) You also indicated in your February 22nd response that the Open Meeting Law and the Civil Service statute allow the City to withhold the records until after the disciplinary hearings have concluded, pursuant to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't ofEnvtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). One of the statutes claimed by the City to withhold the internal affairs and Major Crimes Unit investigation records pursuant to Exemption (a) is the Open Meeting Law, which provides in pertinent part: records of any executive session may remain secret as long as publication may defeat the lawful purposes of the executive session, but no longer G. L. C. 39, § 23B. Consequently, the content of the City's response raises issues that potentially invoke the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. It is recommended that, if appropriate, the parties contact the AGO should they seek a determination on this issue. The City also cites the Civil Service statute to withhold the records. G. L. c. 31, § 41 governs the requirements of the procedures for civil service hearings. Section 41 concerns "discharge, removal, suspension, transfer, abolition of office, reduction of rank or pay, hearings and review."

Edward M. Pikula, Esq. SPR17/243 Page 5 March 10, 2017 A review of Section 41 of the Civil Service statute fails to reveal any restrictive language that would allow the City to withhold the investigation records. The civil service process is separate and apart from the internal affairs investigation, the Major Crimes investigation and the District Attorney's investigation, all of which have concluded. Therefore, I find that the Civil Service statute, as operating through Exemption (a), will not allow the City to withhold the requested Major Crimes investigation report and the internal affairs investigation records. Conclusion I find that the City has not met its burden of demonstrating how the requested records may be entirely withheld under Exemptions (a), (d) and (f) of the Public Records Law. Accordingly, I will consider this appeal closed with the proviso that the City provide Mr. Glaun with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Sincerely, R~~y!Jla1c1 Supervisor of Records cc: Dan Glaun, Andrea L. Stone