Ronald Alexander v. Wellesley, Town of - Police Department (SPR 20170351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2017 SPR17/351 Ms. Kelly Leahy Public Records Manager Town of Wellesley - Police Department 485 Washington Street Wellesley, MA 02481 Dear Ms. Leahy: I have received the petition of Ronald Alexander appealing the response of the Town of Wellesley Police Department (Department) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Alexander requested a copy of all records pertaining to Ronald Alexander in the possession of the bepartment. The Department provided a March 7, 201 7 written response to accompany responsive records. On March 8th, after receiving records from the Department on March 7th, Mr. Alexander sent the Department a letter stating, "[TJhe response was missing several documents, please provide a description of the missing documents with an explanation with specificity as to the withheld records or content of the records pursuant to any exemptions in the Public Records Law." While the Department provided several incident reports, Mr. Alexander stated in his letter that six (6) documents are referenced in the reports, but the Department did not include those records in the package he received. Please be advised, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). The Department's March 7th response that accompanied the records was a form with "check-off boxes" for either Exemptions (a), (c) or (f) of the Public Records Law to withhold one (1) record. The Department did not provide a basis for the redacted records sent to Mr. Alexander. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3). 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

Kelly Leahy SPRl 7/351 Page 2 April 3, 2017 Status of the requester and reason for the request It is important for Mr. Alexander to understand that his status or interests in the underlying matter(s) which led to the public records request does not afford him any greater right of access to the requested information under the Public Records Law. 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). Accordingly, Mr. Alexander's status will play no role in a determination as to whether the records should be disclosed to the public. 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, § IO(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 portion of the responsive record. On March 9th, in response to Mr. Alexander's March 8th letter, the Department provided documents referenced in the incident reports; #17-109-0F, #04-724-0F, #10-234-0F, and #13- 1042-0F. The Department redacted content from all records provided pursuant to Exemptions (c) and (f) of the Public Records Law. However, it is unclear from the Department's March 7th, March 9th and March 29th letters which specific record is being withheld in its entirety, other than a statement that the record is an incident report. I find that the Department must provide a response that clarifies the exemption or exemptions claimed and how the exemption(s) specifically apply to that particular record. Exemption (c) In its March 9th response, the Department claims Exemption ( c) of the Public Records Law as justification for withholding content from the records, but has offered no specificity as to how Exemption ( c) applies. Exemption ( c) permits the withholding of: 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)

Kelly Leahy SPRl 7/351 Page 3 April 3, 2017 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 and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Massachusetts Supreme Judicial Court has found that a records custodian may withhold from disclosure as personnel records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (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. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). 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. 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. I find that the Department did not meet its burden of specifically explaining how Exemption ( c) applies to each of the individual records that were redacted by the Department. Exemption (f) In its March 9th letter, the Department claimed that all the records were redacted pursuant to Exemption (f) of the Public Records Law. The Department indicated that it redacted any information that would identify voluntarily 'Witnesses and information that would prejudice the possibility of effective law enforcement in the future. Exemption (f), the "investigatory" exemption, permits the withholding of:

Kelly Leahy SPRI 7/351 Page4 April 3, 2017 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) Exemption (f) provides a limited protection for those law enforcement activities that require a cloak of confidentiality to succeed. The Supreme Judicial Court has stated that Exemption (f) aims at "the avoidance of premature disclosure of the Commonwealth's case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions." Bougas, 371 Mass. at 62; cited with approval in Reinstein v. Police Commissioner of Boston, 3 78 Mass. 281, 289 (1979). This exemption, however, does not provide a blanket exemption for all investigatory materials. Reinstein, 378 Mass. at 289. Instead, "it 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." Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. I find that the Department has not demonstrated any confidential investigatory techniques that would jeopardize effective law enforcement in the future. The Department must show that whatever investigatory techniques the Department used that may be revealed within the content of the records would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein, 378 Mass. at 290 n.18. 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. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. 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 may be familiar with the individual. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential ·witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) v.11.ll allow the withholding of the name and identifying details of any victims, complainants and voluntary

Kelly Leahy SPRl 7/351 Page 5 April 3, 2017 witnesses, and where the individuals can be indirectly identified even with redaction, the Department may withhold any witness statement in its entirety under Exemption (f). Order I find that the Department has not met its burden of supporting its Exemption ( c) and Exemption (f) claims to redact information, nor has it met its burden of claiming an exemption with specificity when withholding a record under the Public Records Law. Accordingly, the Department is ordered to provide Mr. Alexander 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. Mr. Alexander may appeal the substantive nature of the Department's response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Rebecca S. Murray Supervisor of Records cc: Ronald Alexander Ivria Glass, Fried, Esq.