Mike Beaudet v. Massachusetts State Police (SPR 20171492)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 31, 2017 SPR17/1492 Jenniffer Migliaccio, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Migliaccio: I have received the petition of Mike Beaudet of WCVB Channel 5 Boston appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Beaudet requested "copies of all records and emails related to the marijuana plant investigation at the MassDOT HOV lane building that started in July after WCVB sent State Police a picture of the plant in question." On October 16, 2017, the Department provided Mr. Beaudet a responsive email and memorandum with portions redacted pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). 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. 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

Jenniffer Migliaccio, Esq. SPR1711492 Page2 October 31,2017 The Department's October 16th response In its October 16th response the Department states it "was able to locate one responsive email and a To/From memorandum that was ordered to be written as part of an internal personnel matter regarding the incident." The Department redacted the names of individuals in the responsive emails under Exemption (f). It is unclear whether Mr. Beaudet objects to these redactions; however, he is encouraged to clarify this matter if he objects to this portion of the response. A copy of a memorandum was provided to Mr. Beaudet, however, the entire body of the memo was redacted under Exemptions (c) and (f). In his appeal petition Mr. Beaudet indicates "I believe the complete redaction of the memo is not justified, especially considering the internal investigation is now closed." Exemption (c) Exemption (c) applies to: 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

Jenniffer Migliaccio, Esq. SPR17/1492 Page 3 October 31, 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. of Westport, 401 Mass. 306, 309 (1987). Internal affairs records Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel 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., 58 Mass. App. Ct. 1, 2 (2003). The Appeals Court 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. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessme.11ts, 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 would undermine the relationship of trust and confidence between the police and the citizemy 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 (emphasis added). In its October 16th response, you informed Mr. Beaudet that "I have also redacted the to/from memorandum in light of it being an internal personnel statement." You further assert that "[i]n this instance, the responsive record falls within this exemption since the Trooper was requested as part of a personnel matter to submit a to/from memorandum to his superiors regarding this incident." However, the Department has not established how the body of the memorandum is "useful in making employment decisions" that is similar to "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee" as contemplated by Wakefield. Further, the

Jenniffer Migliaccio, Esq. SPR17/1492 Page 4 October 31, 2017 Department must explain how these records are not internal affairs records as described in Worcester above. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the 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, 371 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. The Department states that "law enforcement has an interest in encouraging individuals to report matters without apprehension that such information will be made a public record. Accordingly, exemption (f) applies for the purpose of encouraging full participation in the process, including the participation of our employees." You also indicate that "[t]he disclosure of personnel statements and the names of witnesses may deter potential witnesses, citizens, and employees from providing information in future investigations." However, the Department has not met its burden to show how the investigation remains ongoing, nor how redaction is necessary to preserve the anonymity of voluntary witnesses. Further, it is unclear whether any portions of the body of the memorandum could be provided that would not "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). The Department has not met its burden to withhold the body of the memorandum in its entirety under Exemption (c) and (f). See Reinstein v. 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 disclosure. G. L. c. 66, § lO(a).

Jenniffer Migliaccio, Esq. SPR17/1492 Page 5 October 31,2017 An attorney in the Public Records Division tried to contact you by phone regarding this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Beaudet 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: Mike Beaudet