Arlenis Joaquin v. Lowell, City of - Police Department (SPR 20171341)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 5, 2017 SPR17/1341 James F. Wellock, Esq. Assistant City Solicitor City of Lowell - Law Derartment 375 Merrimack Street, 3r Floor Lowell, MA 01852-5909 Dear Attorney Wellock: I have received the petition of Arlenis Joaquin appealing the response of the City of Lowell Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Joaquin requested 37 categories of records relating to a January 2017 domestic violence incident, as well as certain policies of the Department and training of Department employees. On June 20th, the Department provided Ms. Joaquin with a copy of the "Lowell Police Department 340.04 Domestic Violence Response" policy and informed her that there are no further records responsive to her request for rules/regulations/policies/procedures and training materials regarding domestic violence. 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). 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 F. Wellock, Esq. SPR17/1341 Page2 October 5, 2017 Status of the requester -Appeal to the Supervisor In her petition, Ms. Joaquin states that the responsive records should be provided to her because they pertain to her, and that the Public Records Law should not be construed to restrict access. The Public Records Law does not distinguish between individuals seeking public records. Ms. Joaquin should be advised that her involvement in the matter offers her no greater right of access than any other person. See G. L. c. 66, § 10(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, her status shall not play a part in whether the records should be released to the public. On June 29th, the Department notified Ms. Joaquin's attorney, Frances B. Dallmeyer, that the Department would provide the requested domestic violence report directly to Attorney Dallmeyer. Therefore, Ms. Joaquin and her attorney should be advised that the appeal process under the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Exemption (a) In its June 20th and July 6th responses, the City informed Ms. Joaquin that records regarding the January 2017 domestic violence incident and arrest are restricted pursuant to G. L. c. 6, § 167; G. L. c. 41, § 97D and G. L. c. 260, as these laws operate through Exemption (a) of the Public Records Law. 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 exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication.

James F. Wellock, Esq. SPR17/1341 Page 3 October 5, 2017 The Department cites G. L. c. 41, § 97D as a means for withholding responsive records. G. L. c. 41, § 97D states: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality .... G. L. c. 41, § 97D. Criminal Offender Record Information The Department has also withheld responsive records pursuant to the Criminal Offender Record Information (CORI) Act. CORI, which is statutorily exempt from disclosure, is defined as: [A] ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information G. L. c. 6, § 167. In the Department's June 20th response, it indicated criminal records are not public records under state law. However, it is unclear what responsive records the Department possesses or how the responsive records constitute CORI or fall under G. L. c. 41, § 97D in their entirety. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 1 O(b )(iv)( emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Additionally, under the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. See G. L. c. 66, § 10(a). The Department's response merely cites the CORI Act without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested

James F. Wellock, Esq. SPR17/1341 Page 4 October 5, 2017 records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department must also explain why any non-exempt, segregable portions of the responsive records cannot be provided. Exemption (b) The Department also denied Ms. Joaquin's request for any certificates from any training in domestic violence for the Department's personnel. Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. It is unclear how release of Department training certifications in domestic violence would hinder the proper performance of the Department's governmental functions. I find that the Department has not met its burden of supporting an Exemption (b) claim to withhold training certificates of the Department's officers. Exemption (c) The Department has also claimed that any domestic violence training certificates of Department officers are exempt under Exemption (c). It is the Department's belief that if these certifications exist they would be part of the officers' personnel files. 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

James F. Wellock, Esq. SPR17/1341 Page 5 October 5, 2017 analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Where the Department has claimed that the first clause of Exemption (c), the personnel clause, applies to withhold the certification records, only the first clause will be analyzed in this determination. The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The courts have discussed specific categories of records that may be redacted under the first clause. Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01 184-A (June 14, 2013). While statutorily exempting personnel information from the expansive definition of public records, the Massachusetts Legislature did not explicitly define "personnel [file] or information." G. L. c. 4, 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief ofPolice of Worcester, 58 Mass. App. Ct. 1, 5 (2003). The classification by custodians of records or materials as personnel information are not conclusive. Wakefield, 431 Mass. at 798. Instead, the nature or character ofthe documents, as opposed to the documents' label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. Employment qualifications The Court also noted that not all information maintained in a personnel file is subject to exemption under the first clause of Exemption (c). Information maintained for the ordinary administration of employees, such as payroll records, does not constitute such personnel information. Wakefield, 431 Mass. at 799. The Department officers who may be the subjects of training and qualifications in domestic violence are public employees. Public employees have a diminished expectation of privacy with ~espect to public employment matters. George W. Prescott Publishing Company v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985). Certain otherwise personal information may be considered public if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (198); Globe Newspaper Co., 388 Mass. at 438. The substantial public interest in ascertaining the manner in which public officials perform their official duties will also operate to lessen that which may be considered personal with respect to a public employee. Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979); New Bedford Standard Times Publishing Co. v. Clerk ofthe Third District Court of Bristol, 377 Mass. 404,417 (1979); 1976-77 Op. Atty Gen. Mass. 157 at 12. ("It is my opinion that educational and professional training and experience are not exempted from disclosure by Exemption (c)"). The question of whether professional vocational qualifications and training are exempt from disclosure pursuant to Exemption (c) of the Public Records Law is well settled. Massachusetts Courts have consistently recognized the public's interest in the qualifications and performance of government employees. John J. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 863-64 (1975); Rotkiewicz v. Sadowsky, 43 1 Mass. 748, 753 (2000); Daniel Lynch

James F. Wellock, Esq. SPR17/1341 Page 6 October 5, 2017 v. News Group Boston, Inc., 1 Mass. L. Rep. 9, 4 (1993); Charles Mazetis v. The Enterprise Publishing Co., 22 Mass. L. Rep. 380, 10 (2007). The fact that these records or information may be held in a personnel file does not render the records completely exempt as personnel records under Exemption (c). It is unclear from the Department's response whether it possesses any certification records for domestic violence training of its officers. If the Department does possess the training certificates, I find that the records may not be withheld pursuant to the personnel clause of Exemption (c). The Department was provided with a copy of the appeal file and was contacted by an attorney in the Public Records Division to further discuss Ms. Joaquin's requests and this appeal. It is my understanding that the Department will provide a supplemental response regarding any domestic violence training certificates pertaining to the Department's officers. Conclusion Accordingly, whereas the Department will provide a supplemental response, I consider this administrative appeal closed with the proviso that the response is provided to Ms. Joaquin and Attorney Dallmeyer in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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: Arlenis Joaquin Frances B. Dallmeyer, Esq.