Joshua D. Krell, Esq. v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20170463)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 18, 2017 SPR17/463 Kate McKeever, Esq. General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney McKeever: I have received the petition of Joshua D. Krell, Esq. of Clark, Hunt, Ahern & Emby, on behalf of his client, appealing the response of the Executive Office of Energy and Environmental Affairs (EOEEA) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on March 11, 2016, Attorney Krell requested a copy of several categories ofrecords relating to his client. EOEEA provided Attorney Krell's client with his personnel file, a disclosure which is outside the scope and authority of the Public Records Law. By statute, an employee is entitled to a copy of his/her personnel file. See G. L. c. 149, § 52C. EOEEA also provided Attorney Krell with responsive records in response to the original March 11, 2016 request; however, believing that EOEEA had further records responsive to his request, Attorney Krell petitioned this office in September 2016. Prior appeals The requested records were the subject of two prior appeals. See SPR16/791 and SPR17/080 Determinations of the Sufervisor of Records (Supervisor) (October 11, 2016; January 17,-2017). In the October l lt1 determination, the Supervisor found that while EOEEA provided records, EOEEA did not meet its statutory and regulatory obligation of specifically citing exemptions to withhold certain records and to withhold content from certain records. EOEEA was ordered to provide a specifically-stated response to the requests. When EOEEA failed to meet its obligation of providing the response within ten (10) calendar days, Attorney Krell petitioned this office, and another appeal was opened. See SPRl 7 /080. In response to the October 11th order from the Supervisor, EOEEA provided Attorney Krell with a response citing exemptions for the withheld and redacted 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

Kate McKeever, Esq. SPRl 7/463 Page 2 April 18, 2017 Whereas, appeal SPRl 7/080 was opened on the basis ofEOEEA's failure to provide a written response, the Supervisor considered the appeal closed upon receipt of the response. The basis of the current appeal is Attorney Krell's stated opinion, "[T]hat EOEEA has no grounds for wholesale withholding of investigative reports, when witnesses or other sensitive information could be redacted." Attorney Krell petitioned this office as a result of EOEEA's January 19th response claiming Exemptions (c ) and ( f) to redact and withhold certain of the responsive records. Status of the Requester and Reason for the Request Attorney Krell informed this office in his petitions that the responsive records were requested in the process of representing his client. It is important for Attorney Krell and his client to understand that their status or interests in the underlying matter which led to the public records request does not afford them 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, Attorney Krell's, or his client's, status will play no role in a determination regarding the Public Records Law. 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 ofestablishing 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. Exemption (c) The EOEEA's January letter states that the administrative review report (investigation report), the administrative leave report, documents relating to an identified officer, photographs

Kate McKeever, Esq. SPR17/463 Page 3 April 18, 2017 of Attorney Krell's client and the underlying information regarding a letter sent to Attorney Krell' s client regarding the personnel investigation have been withheld in their entirety under the first clause of Exemption (c) of the 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)(c). 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 (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 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 if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Internal affairs records Please note that the courts have contrasted the public status of disciplinary investigation materials oflaw 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. Id. at 7-8.

Kate McKeever, Esq. SPR17/463 Page 4 April 18, 2017 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 citizemy 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 citizen'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, 58 Mass. App. Ct. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). EOEEA withheld the Administrative Review Report, the Administrative Leave Report, photographs of Attorney Krell' s client from the personnel investigation, and a letter to Attorney Krell's client regarding the personnel investigation under the first clause of Exemption (c). In a telephone discussion with a Public Records Division attorney, Jennifer Sulla, an attorney at EEOA explained that the investigation into Attorney Krell's client's complaint did not rise to the formal level of an internal affairs investigation as described in the Worcester Telegram & Gazette Corp. case. The EEOA informed this office that the investigation was initiated after Attorney Krell's client filed a workplace complaint under his rights as an employee, and that the investigation was an ordinary internal personnel matter concerning employee working relationships as described in Wakefield Teachers Ass'n, 431 Mass. 792. Therefore, the EEOA believes that given the nature and character of these investigation records, they are personnel records that were useful in rendering employment decisions regarding employees. However, I find that the EEOA must explain further how these records are not internal affairs records as described above. In the discussion with a Public Records Division attorney, Attorney Sulla also explained that the records also contain medical information regarding an identified person that is private under Exemption ( c ). 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., at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe

Kate McKeever, Esq. SPRl 7/463 Page 5 April 18, 2017 Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987).I find that the EEOA has properly withheld the medical information under the first clause of Exemption ( c ). Exemption (I) The EOEEA is withholding names, identifying information and complete statements and investigatory information provided by witnesses in their entirety under Exemption (f) of the Public Records Law. 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 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) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. 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. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). 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 are familiar with the individual and his career." Id. at 438. 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 citizens so that they will speak openly and voluntarily about matters they have witnessed. Bougas, 3 71 Mass. at 62. The disclosure of the names of voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of victims, voluntary witnesses and/or complainants. The EOEEA informed

Kate McKeever, Esq. SPR17/463 Page 6 April 18, 2017 the Public Records Division that normally the EOEEA would redact the records to protect the identities of complainants and witnesses, and provide the balance of the record. However, even with redaction Attorney Krell's client would be able to identify the individuals who have come forward to give information for the investigation concerning the workplace environment, so there is no possibility of protecting their identities. Therefore, I find that EOEEA may properly withhold the records in their entirety pursuant to Exemption (f). Order Accordingly, I find that the EOEEA has met its burden of specificity in withholding the medical information under the first clause of Exemption ( c) and the complainant and witness information under Exemption (f). However, I find that the EOEEA has not met its burden of specificity in withholding the records pursuant to the first clause of Exemption ( c) as personnel information that was useful in making an employment decision, as distinguished from internal affairs investigation records. Accordingly, I will consider this appeal closed with the proviso the EOEEA provide Attorney Krell with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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. If Attorney Krell is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua D. Krell, Esq.