Joe Shank v. Townsend, Town of - Town Administrator (SPR 20171147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 6, 2017 SPR17/1147 James M. Kreidler, Jr. Town Administrator Town of Townsend 272 Main Street Townsend, MA 01469 Dear Mr. Kreidler: I have received the petition of Joe Shank appealing the response of the Town of Townsend 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. Shank requested all records regarding any internal police investigation for the past five years concerning an identified individual. Initially, on August 21, 2017 you informed Mr. Shank by email that the Town does not possess any documents responsive to his request because there are no records related to an internal police investigation for the past five years regarding the identified individual. On August 22, 2017, upon Mr. Shank's objecting to this response, you informed him that "[t]here (are) documents responsive to your request but they are exempt from disclosure pursuant to exemptions (c) ... and (f)." You further stated that the Town is denying him his request in its entirety. Mr. Shank appealed the Town's denial to this office. Requirements for petitions to the Supervisor of Records A review of Mr. Shank's petition to the Supervisor of Records (Supervisor) requesting an administrative appeal reveals that he did not provide the Records Access Officer (RAO) with a copy of his petition. Mr. Shank is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). To assist the RAO in responding to this appeal, a staff member in the Public Records Division provided the RAO with a copy of the appeal file. 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

James M. Kreidler SPR17/1147 Page 2 September 6, 2017 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, § 10A(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, § 10(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 your August 2211 ct email to Mr. Shank, you claim that the records in the Town's custody are not records of an internal "police" investigation; therefore, you state that the Town may withhold the records under the first clause of Exemption (c) of the Public Records Law as "personnel records." 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). I d. 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).

James M. Kreidler SPR17/1147 Page 3 September 6, 2017 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). 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 ofthe 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. In your August 2211 d email response you state "[t]he documents were not part of a formal police department internal affairs proceeding. The courts have determined that internal affairs records are not necessarily covered by exemption (c) and not considered to be personnel records. However, no part of the document(s) at issue is/are connected to an internal affairs proceeding." It is unclear which responsive records the Town has in its custody regarding the investigation of the named former Town Police Department employee, who conducted the investigation and why the records cannot be provided in a redacted format. The duty to comply

James M. Kreidler SPR17/1147 Page 4 September 6, 2017 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). The Town must clarify this matter. Therefore, I find that the Town has not met its burden to support its Exemption (c) claim. Exemption (f) The Town is also claiming Exemption (f) of the Public Records Law to withhold the records. Exemption (f) applies to: investigatory materials necessarily compiled out ofthe 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, 3 71 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. You state in your August 22nd response, "[a] portion ofthe document(s) involves(s) discussions of ongoing investigatory matters that either involve the Police Department or investigations performed by the Police Department ... Because the document(s) involve discussion of ongoing investigations by police and other officials, and disclosure at this time would prejudice the investigations, exemption (f) applies." While the Town's response claims that a portion of the responsive records pertain to ongoing investigations, it does not explain the subject of the investigations nor does it describe how the requested records are part of the investigations. Further, the Town did not demonstrate how disclosure of the responsive records, even in a redacted format, "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). The Town has not met its burden to support its Exemption (f) claim to withhold the records or portions of the records. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions

James M. Kreidler SPR17/1147 Page 5 September 6, 2017 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, § 10(a). I understand that an attorney in the Public Records Division contacted you about this appeal, and indicated that the Town needs to provide a further response to Mr. Shank. Although you did provide a subsequent response to Mr. Shank on August 30, 2017 via email and copied this office, the substance of that response remains lacking in specificity and support for the two exemptions claimed. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Town provides Mr. Shank with a response to the request, 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: Joe Shank