George Brennan v. Tisbury Town Administrator (SPR 20170782)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 21, 2017 SPR17!782 John W. Grande Town Administrator Town of Tisbury 51 Spring Street Tisbury, MA 02568 Dear Mr. Grande: I have received the petition of George Brennan of the Martha's Vineyard Times appealing the response of Town of Tisbury Town Administrator (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Brennan requested investigative reports, "any and all discipline reports," and "any and all executive session minutes from previous disciplinary hearings" regarding an identified police officer. In a response dated June 6, 2017, the Town provided responsive records but redacted portions under Exemptions (a) and (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(a), (c). The Town also provided a supplemental response regarding the applicability of exemptions. 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 portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a 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

John W. Grande SPR17/782 Page 2 June 21, 2017 custodian must provide the responsive records. Executive session minutes; Open Meeting Law In its June 6th response the Town claims "[t]he executive session minutes that recorded his disciplinary hearing(s)" and the "executive session minutes that pertain to a specifically named individual who is subject to discipline" are exempt under Exemptions (a) and (c). Mr. Brennan's request for executive session minutes raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the status of the executive session minutes. See G.L. c. 30A, §23. It is recommended that you contact the AGO should you seek a determination on this issue. Exemption (a) With respect to the remaining responsive records, the Town cites G. L. c. 214, § lB and G. L. c. 268A as they operate through Exemption (a) to support withholding certain information. 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. Chern. Corp. v. Dep't ofEnvtl. Quality Eng' g, 19 Mass. App. Ct. 287 (1985). In its supplemental response to Mr. Brennan, the Town claims information may be withheld under the so-called Right to Privacy statute as it operates through Exemption (a) of the Public Records Law. G. L. c. 214, § lB. The Right to Privacy statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) of the Public Records Law to permit withholding of records. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § lB provides no alternative legal basis to resist inspection of requested materials). The Town also cites G. L. c. 268A in support of its position. I find the Town has not met its burden to withhold or redact records pursuant to G. L. c. 214, § lB or G. L. c. 268A.

John W. Grande SPR17/782 Page 3 June 21, 2017 Exemption (c) The Town also cites the first and second clause of Exemption (c) to support withholding certain information. 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 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 medical and 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 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. ofWestport, 401 Mass. 306, 309 (1987). Internal affairs records The nature of Mr. Brennan's request suggests that responsive records pertain to "internal affairs investigations." Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary

John W. Grande SPR17/782 Page 4 June 21, 2017 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 police and the citizenry 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 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. Id. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). Second clause 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, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals v. Dep't of Agric. Res., 2017 Mass. LEXIS 390, at * 19-20 (June 14, 20 17).

John W. Grande SPR17/782 Page 5 June 21, 2017 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 *20 n. 13; 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 balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. People for the Ethical Treatment of Animals, 2017 Mass. LEXIS 390, at *19. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at *20. The Town indicates it redacted "the names of all voluntary witnesses, to protect their privacy, whether they are Town employees, public safety and/or non-public safety. Personnel records contain personal information [that] cannot be released." The Town also indicates the "disciplinary letters are exempt from disclosure." In light of the Worcester decision, I find the Town has not met its burden to withhold the responsive information under the first clause of Exemption (c). I find the Town also did not meet its burden to establish that disclosure of the withheld information "may constitute an unwarranted invasion of personal privacy" as required by the second clause of Exemption (c). Unclear if all responsive records provided In his appeal petition, Mr. Brennan indicates "[t]he [T]own did turn over some records, but we believe there are more that have not been provided." I find that based on the Town's responses, it is unclear whether it possesses additional responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Therefore, the Town must clarify which responsive records it possesses. If it intends to withhold any records, it must explain with specificity how an exemption applies. See Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted you about this appeal and provided a copy of the file associated with this appeaL Conclusion Accordingly, the Town is hereby ordered to provide Mr. Brennan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this

John W. Grande SPR17/782 Page 6 June 21, 2017 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ·#JJwA~ Rebecca S. Murray Supervisor of Records cc: George Brennan