Keith Eddings v. Lawrence, City of - Legal Department (SPR 20171116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2017 SPR17/1116 Raquel D. Ruano, Esq. First Assistant City Attorney City of Lawrence - Legal Department City Hall - Room 306 200 Common Street Lawrence, MA O1 840 Dear Attorney Ruano: I have received the petition of Keith Eddings of The Eagle;. Tribune appealing the response of the City of Lawrence - Legal Department (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Eddings requested "copies of all records created in response" to a specifically identified incident on May 5, 2017. Mr. Eddings notes "[t]he records I seek include all incident reports created by officers who responded and records created as part of the Internal Affairs investigation, including the investigation's findings." Prior appeal The requested records were the subject of a prior appeal. See SPRl 7 /1054 Determination of the Supervisor of Records (August 10, 2017). In my August 10th determination, I ordered the City to provide Mr. Eddings with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The City responded in an email dated August 15, 2017. Objecting to this response, Mr. Eddings appealed and SPRl 7 /1116 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). 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 D. Ruano, Esq. SPRl 7/1116 Page 2 August 30, 2017 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(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. Exemption (c) In the City's initial July 10, 2017 response the City claims that both clauses of Exemption ( c) apply to withhold the records regarding the May 5th incident. In its August 15th response the City reiterates its intent to withhold responsive records. Exemption ( c) of the Public Records Law 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." 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

Raquel D. Ruano, Esq. SPRl 7/1116 Page 3 August 30, 2017 considered part of a public record ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). Internal affairs investigation records vs. personnel records The Appeals 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 of Police 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 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. 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 citizemy'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. Your August 15th email response states "[t]he City's response was for documents that are NOT part of any Internal Affairs investigation and therefore believes that the SOS has misinterpreted not only the request but also the City's response." You continue by stating "[i]n its response, the City did not include which category of document[ s] do not exist as that list is infinite. Rather, its response was limited to documents that do exist, of which none are part of any IA investigation." It is still unclear which responsive records the City has in its custody regarding the incident. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). The City must clarify this matter. Mr. Eddings states in his August 16, 2017 petition, which he also provided the City, that he spoke to the Chief of Police, James Fitzpatrick, by telephone on May 8, 2017 and that Chief Fitzpatrick informed him that the Police Department conducted an "administrative inquiry." The

Raquel D. Ruano, Esq. SPR17/1116 Page 4 August 30, 2017 City has not explained what is meant by "administrative inquiry," and why any actions taken by the City as a result of the incident is not tantamount to an "internal investigation" as contemplated by the Worcester decision. Therefore, the City has not met its burden to withhold responsive records in their entirety under the personnel clause of Exemption ( c) . Second clause The City has also claimed that the records relate to a personal issue concerning the named officer because disclosure would 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 of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. The second clause of Exemption ( c) 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., 4 77 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. Id. 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). The privacy clause of Exemption ( c) 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, 4 77 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 July 10th and August 15th responses, it is unclear how the records in the City's custody regarding the incident involving the named police officer contain intimate details of a highly personal nature. Further, the Department has not demonstrated how disclosure would result in personal embarrassment to an individual of normal sensibilities, nor addressed whether this information is available from other sources. Id. In light of the PETA analysis, and the public interest in maintaining openness in a police internal affairs investigatory process, 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). See Reinstein v.

Raquel D. Ruano, Esq. SPR17/1116 Page 5 August 30, 2017 Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand an attorney in the Public Records Division contacted you and you indicated the City will provide another response regarding this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the City provides Mr. Eddings a response, 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: Keith Eddings