Todd Feathers v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20170370)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 4, 2017 SPR17/370 Margaret M. Callanan, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Callanan: I have received the petition of Todd Feathers of The Lowell Sun appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Feathers requested copies of all internal affairs reports since January 1, 2010 involving Environmental Police Officers. In a response dated December 30, 2016 you denied this request, citing Exemptions (c) and (t) of the Public Records Law. G. L. c. 4, § 7(26)(c), (t). The Public Records Law 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 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 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. 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

Margaret M. Callanan, Esq. SPRl 7/370 Page 2 April 4, 2017 Denial of access pursuant to Exemption (c) In EOEEA's December 30th response, you explain that EOEEA is withholding responsive records in their entirety pursuant to Exemptions (c) and (f) of the Public Records Law. 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). First clause - Personnel 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 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, 793 (2000). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," and may be withheld pursuant to the first clause of Exemption (c). Id. The courts have also discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). · Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274,278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306,209 (1987). Internal Affairs personnel records are generally public Records of an internal affairs investigation conducted by a law enforcement agency were held by the Appeals Court not to be exempt personal information given the import of

Margaret M. Callanan, Esq. SPRl 7/370 Page 3 April 4, 2017 maintaining the public's trust through the transparency of the internal affairs process. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378,383 (2002). This is distinguished from ordinary disciplinary records that are exempt from disclosure pursuant to the first clause of Exemption (c). The Appeals Court in Worcester 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. 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 public and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the publics' 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) It is clear from the definitions above that records that are the product of such an investigation into the conduct of a law enforcement official are public records. 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 of the internal 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

Margaret M. Callanan, Esq. SPRl 7/370 Page4 April 4, 2017 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. While it is the finding of this office that internal investigation records may not be withheld as personnel records, this does not preclude a governmental entity from applying other exemptions from the Public Records Law to redact or withhold portions that ought to be so withheld. Exemption (c)-Second clause Exemption (c ) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Analysis under the second clause of Exemption ( c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause 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" while requiring a balancing of the public's right to know against the relevant privacy interests at stake. Real Prop. Dep't, 380 Mass. at 625. The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 626 n. 2; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a records custodian to perform a two-step analysis to determine whether the record may be withheld from disclosure. First, the records Gustodian must determine whether the information constitutes an "intimate detail of a highly personal nature." If so determined, then the records custodian must consider whether the privacy interests of the individual outweigh the public interest in disclosure of this information. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979). Exemption (I) Exemption (f) permits the withholding of:

Margaret M. Callanan, Esq. SPR17/370 Page 5 April 4, 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). 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, 3 78 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. Determination It is the finding of this office that EOEEA's response did not contain the specificity required for a denial of access under Exemption (c) and Exemption (f) of the Public Records Law. Subsequent to an April 4th telephone conversation with a member of the Public Records Division staff, you agreed to provide Mr. Feathers with a supplemental response to this request. Accordingly, I will now consider this administrative appeal closed with the proviso that this response is provided 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, Rebecca S. Murray Supervisor of Records cc: Todd Feathers