Michael Smith v. Wareham, Town of - Town Administrator (SPR 20171524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor pfR ecords November 7, 2017 SPR17/1524 Derek D. Sullivan Town of Wareham -Town Administrator Memorial Town Hall 54 Marion Road Wareham, MA 02571 Dear Mr. Sullivan: I have received the petition of Michael Smith appealing the response of the Town of Wareham Town Administrator (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 15, 2017, Mr. Smith requested a "copy of the internal affairs investigation relating to" an identified Wareham Police Sergeant and Police Chief "conducted during the fall of2016 by an independent investigator." Previous appeal The requested record was the subject of a prior appeal. See SPRl 7/1163 Determination of the Supervisor of Records (September 6, 2017). Following the September 6'h Determination, the Town provided a supplemental response to Mr. Smith on October 2, 2017 in which it continues· to deny access to the responsive records pursuant to Exemption (c ) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Town's response, Mr. Smith petitioned this Office and this appeal, SPR! 7/1524, 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). 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, § !O(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Derek Sullivan SPRl 7/1524 Page 2 November 7, 2017 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees .are paid, a records custodian must provide the responsive records. The Town's October 2"d response In its October 2nd response, the Town indicated that it denied access to the responsive records because "the report is not an internal affairs report and the release of this document may constitute an unwarranted invasion of personal privacy." The Town indicated that the report being requested is the result of an investigation following a conversation between the Town Administrator and one of the identified police officers. The Town asserted that the report is not an internal affairs report because there was no complaint made to the Internal Affairs Division in the Police Department, nor was there a form signed indicating that the complainant wanted the matter investigated by the Town Administrator or the Administrative Executive Officer in charge of Internal Affairs. The Town insists that the decision to investigate the matter was solely based on the discretion of the Town Administrator. Further, the Town indicated that release of the requested record may constitute an unwarranted invasion of personal privacy. The Town reiterated that the report is an investigation into a personnel matter because the complaint was about a work place incident. The Town indicated that the resulting report was placed in the personnel file of the Police Chief"and as such it may, as M. G. L. Chapter 149, Section 52C provides, 'affect or be used relative to that employee's qualifications for employment, promotion, transfer, additional compensation or disciplinary action.' Accordingly, its release would constitute an unwarranted invasion of the [Chiefs] personal privacy." The Town also indicated that "[i]n addition to violating the Chiefs privacy, to release it would impair the Town's ability to function effectively as an employer. ... If this information were subject to disclosure, other employees would be reluctant to cooperate fully without reservation." Exemption (c) The Town indicated its intent to withhold the responsive records pursuant to Exemption (c ) of the Public Records Law. Exemption ( c) applies to: personnel and medical files or information; also any other materials or data relating to a

Derek Sullivan SPRl 7/1524 Page 3 November 7, 2017 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). First clause 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. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee"' may be withheld from disclosure. Worcester Telegram & Gazette. Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or tennination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). 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 Publishing Co. v. Register of Probate for Norfolk County, 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 ofLynh, 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). The Town continues to reiterate that the responsive record is an investigation into a personnel matter and not ah internal affairs investigation. This is because according to the Town, the investigation was initiated solely by the discretion of the Town Administrator following a complaint by the identified police officer regarding a 'work place incident. Additionally, the Town argues that because there was no complaint to the Administrative Executive Officer in charge of internal affairs, nor a request to the Internal Affairs Division to initiate an investigation into the matter, the investigation therefore is a personnel matter and is exempt from disclosure under the personnel clause of Exemption (c ). However, the Town is advised that "the fact that neither theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, nor harassment is involved does not logically lead to the conclusion that the record must therefore be personnel information." Leeman v. Cote, No. 0502352, 2006 Mass. Super. Ct. LEXIS 404, at *16 (August 30, 2006). Further, the Court in Leeman, concluded that the fact that officers of the Department initiated the

Derek Sullivan SPRl 7/1524 Page4 November 7, 2017 complaint alleging misconduct during an exam was not dispositive to classify the documents as personnel records, different from records of an internal affairs investigation. See id. Consequently, the Town has not demonstrated how the report is not part of an internal affairs · investigation as contemplated in the Leeman decision. Also, despite the Town's assertion that the report is a personnel file, the Town is advised that the term "personnel file or information" in Exemption (c ) derives its meaning from the nature or character of tl;ie document, not from its label or its repository. Worcester Telegram & Gazette Corp. 58 Mass. App. Ct. at 5. Therefore, the Town's claim that the report "has been placed in [the identified Chiefs] personnel file" does not render the report exempt from disclosure as a custodian's designation of materials as personnel file or information will not be dispositive to that point. Id. at 5-6. Further, although the Town cited a statute, G. L. c. 149, § 52C, that may allow a custodian to withhold a record within a personnel file that could affect or be used relative to an employee's qualification for employment, transfer, promotion, etc., the Town did not explain how the report placed in the identified Chiefs personnel file falls under a core category of records useful in malcing employment decisions regarding an employee. Therefore, I find the Town has not met its burden to show the report is exempt under the personnel clause of Exemption (c). Second Clause Analysis under the second clause of Exemption ( c) is subjective in nature and requires a balancing of the public's right to !mow 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, 3 80 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., 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. 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) . . This clause requires a balancing test which provides that where the public interest in

Derek Sullivan SPRl 7/1524 Page 5 November 7, 2017 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 am carrying out their duties in a law-abiding and efficient manner. Id. at 292: Under the second clause of Exemption (c), the Town claimed the release of the report would constitute an unwarranted invasion of personal privacy. In the September 6th . Determination Letter to the Town, I stated that the Town has not met its burden of specifically explaining the particular privacy interest at stake and how the Town has met the two-step analysis necessary to withhold the "intimate details of a highly personal nature." In its supplemental response, the Town failed to explain the privacy interest at stake. Considering the PETA decision, I find the Town has not demonstrated how the report contains intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. As such, I find the Town has not met its burden of specificity applying the exemption to withhold the report. Further it is unclear how the responsive record can be withheld in its entirety. The Town must determine whether there are any portions of the responsive record that does not fall within an exemption that would therefore be subject to mandatory disclosure. Any non-exempt, c: segregable portion of a public record is subject to mandatory disclosure. See G. L. 66, § lO(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrow! y construed and are not blanket in nature). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion . Accordingly, whereas the Town has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Town provides said 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. Mr. Smith may appeal the substantive nature of the response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Smith