Keith Eddings v. Lawrence, City of - Legal Department (SPR 20171054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10,2017 SPR17/1054 Raquel D. Ruano, Esq. City of Lawrence - Legal Department 200 Common Street 3rd Floor, Room 306 Lawrence, MA 01840 Dear Attorney Ruano: I have received the petition of Keith Eddings appealing the response of the City of Lawrence (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on June 28, 2017, Mr. Eddings requested "copies of all records created in response to the incident involving" an identified Sergeant "at police headquarters on or about May 5, 2017." Mr. Eddings requested that the records "include all incident reports created by officers who responded and records created as part of the Internal Affairs investigation, including the investigation's findings." On July 10, 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, Mr. Eddings petitioned this Office and this appeal, SPR171 1054, 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, § 1O A(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, § 1 O(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. 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

Raquel Ruano, Esq. SPR17/1054 Page 2 August 10,2017 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 responsiverecords. The City's July lOth response In the City's July lOth response, the City indicated that "[y]our request is denied as the records you have requested for are [exempt] from the [P]ublic [R]ecords [L]aw under M.G. L. c. 4, § 7(26)(c)." The City also indicated that "[t]he records you have requested involve information that is useful in making employment decisions and are therefore a personal issue for this specific person ...." 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, 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." I d. 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

Raquel Ruano, Esq. SPR1711054 Page 3 August 10, 2017 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 A Court has 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 of the police department's internal affairs process. Worcester Telegram & Gazette Corp. v. Chief ofPolice of Worcester, 58 Mass. App. Ct. 1, 2 (2003). This Court established that: 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 exits 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. 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., citing Globe Newspaper Co., 419 Mass. at 866. It is unclear how the responsive records created as part of an Internal Affairs investigation are not public as established in the Worcester decision. Consequently, the City has not met its burden to withhold the responsive records in their entirety under the first clause of Exemption (c). Second clause The City in its July 10111 response indicated that because the requested record is "a personal issue for this specific person ... the disclosure of said documents may constitute an unwarranted invasion of personal privacy." 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 ofReal Property

Raquel Ruano, Esq. SPR17/1054 Page 4 August 10, 2017 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 (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (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. I d. at 292 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. PETA, 477 Mass. at 291. 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 292. Based on the City's response it is unclear how the Internal Affairs investigation records in its possession contain intimate details of a highly personal nature. Further, because the Worcester Court reasoned that openness in a police internal affair investigatory process was necessary to foster the public trust in law enforcement, it is not apparent how the public interest in obtaining the requested information does not substantially outweigh the privacy interest of the identified Sergeant. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8. Accordingly, because there is a compelling public interest in favor of disclosure not outweighed by identified private interests, I find that the City has not met its burden to withhold the responsive records in their entirety under the second clause of Exemption (c). Order Accordingly, the City is ordered to provide Mr. Eddings 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.

Raquel Ruano, Esq. SPR17/1054 Page 5 August 10,2017 Sincerely, '~_ual#i~ Rebecca S. Murray Supervisor of Records cc: Keith Eddings