Cornelius W. Phillips, III v. Springfield, City of (SPR 20171027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 9, 2017 SPR17/1027 Andrea L. Stone Public Records Coordinator City of Springfield - Law Department 3 6 Court Street, Room 21 0 Springfield, MA 01108 Dear Ms. Stone: I have received the petition of Cornelius Phillips III, Esq. appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Phillips requested "all Pre Hearing dispositions with Police Commissioner since 2007." In a response dated July 11, 2017, the City denied his request under Exemption (c) ofthe Public Records law. G. L. c. 4, § 7(26)(c). Unsatisfied with the City's response, Attorney Phillips petitioned this Office and this petition, SPR171 1027, was opened as a result. 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 custodian must provide the responsive 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

Andrea L. Stone SPR17/1027 Page 2 August 9, 2017 The City's July Il" response In its July 11th response, the City indicated that "[t]he requested records are exempt from disclosure pursuant to M. G. L. c. 4, § 7(26)( c) also known as the 'Privacy Exemption."' The City also indicated that "M. G. L. c. 4, § 7(26)( c) allows for the redaction/segregation of any information that contains 'personnel and medical files or information; .... '"Therefore, "the City must deny your request because it believes that the requested records are exempt from disclosure as public records pursuant to the Public Records Law M. G. L. c. 4, § 7." Exemption (c) 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). 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 Publ'g Co. v. Register of Probate for Norfolk Cnty., 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).

Andrea L. Stone SPR17/1027 Page 3 August 9, 2017 The Worcester Court concluded that disciplinary investigation materials of law enforcement personnel are different 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 ofthe police department's internal affairs process. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 2 (2003). The Worcester Court concluded that "[a]n internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment ... "and it "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 could undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement." Id. at 7. Consequently, it 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. It is unclear how the responsive records relating to police disciplinary matters are not similar to those determined to be public in the Worcester decision. Therefore, the City has not met its burden to withhold the responsive records in their entirety under Exemption (c). Open Meeting Law Attorney Phillips mentioned that "[t]he City of Springfield, since 2007 and under Executive Order of the Mayor, has conducted Police Disciplinary Hearings with a Civilian Police Review Board; and, as stated in the Executive order, subject to the Open Meeting Law." I find that the nature of Attorney Phillips' statement raise an issue that invokes the Open Meeting Law. Given that the interpretation of the Open Meeting Law falls within the purview of the Attorney General (AGO) and not this Office, I decline to opine on this matter. It is recommended that you contact the AGO should you seek a determination on this issue. Conclusion Accordingly, the City is ordered to provide Attorney Phillips 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 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: Cornelius Phillips III, Esq.