Emily Cutts v. Northampton, City of - Police Department (SPR 20171692)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2017 SPR17/1692 Chief Jody D. Kasper City of Northampton-Police Department 29 Center Street Northampton, MA 01060-3090 Dear Chief Kasper: I have received the petition of Emily Cutts of the Daily Hampshire Gazette appealing the response of the City of Northampton Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 28, 2017, Ms. Cutts requested records relating to an identified.Lieutenant's recent "paid and unpaid administrative leave." Ms. Cutts requested the following: "• Internal affairs materials to the department's determination that 'additional workplace rules had been violated' • Documents relating to outside agency -- APD Management ofTewksbury investigation including but not limited to invoices for services and investigatory reports." The Department provided a response on November 28, 2017, in which it provided a record and denied access to others pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c),(f). Unsatisfied with the Department's response, Ms. Cutts petitioned this office and this appeal, SPRl 7/1692, 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, § 1 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

Chief Jody D. Kasper SPRl 7/1692 Page2 December 21, 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 Department's November 28th response In its November 28th response, the Department provided responsive records relating to Ms. Cutts' second request for"[ d]ocuments relating to outside agency ... investigation including but not limited to invoices for services and investigatory reports." However, the Department indicated that it withheld responsive records related to Ms. Cutts' first request for documents related to an internal affairs investigation regarding the identified lieutenant pursuant to Exemptions (c) and (f) of the Public Records Law. Exemption (c) The Department indicated it withheld responsive records pursuant to Exemption ( c) of the Public Records Law. 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). First clause ofE xemption (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 personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will always be of a sufficiently personal nature to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987).

Chief Jody D. Kasper SPRl 7/1692 Page 3 December 21, 2017 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). The courts have discussed specific categories ofrecords 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 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 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). Under the first clause of Exemption (c), the Department indicated that "[t]his case involves the personal and private medical records of one or more of the parties involved. The case also involves intimate details of a highly personal nature .... Further, this case involves personnel information, the release of which would disrupt our ability to conduct sensitive and careful investigations regarding employees. Even if we redacted the names of witnesses, their statements alone would reveal their individual identities and would have a dramatic negative impact on our work environment and our department's ability to function effectively." 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 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 would undermine the relationship of

Chief Jody D. Kasper SPR17/1692 Page4 December 21, 2017 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 citizenry'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. v. Police Comm'r, 419 Mass. 852, 866 (1995) (emphasis added). Based on the Department's November 28th response, I find the Department may permissibly withhold portions of the responsive record that contain medical information under the first clause of Exemption (c). However, it is unclear how the rest of the responsive records relating to police disciplinary matters are not similar to those determined to be public in the Worcester decision. Second clause ofE xemption (c) 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. This clause 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 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

Chief Jody D. Kasper SPRl 7/1692 Page 5 December 21, 2017 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. Under the second clause of Exemption ( c ), the Department claims "[i]t is an invasion of personal privacy under M.G.L. c. 214 & lB, as appearing in St. 1973, c. 1114&62, to disclose personal data where such disclosure will result in an unreasonable, substantial or serious interference with the privacy of a subject unless the data subject consents. Disclosure of report information would be an invasion of the personal privacy of the people involved and has substantial likelihood of negatively impacting their work and personal lives." The Department's response does not sufficiently offer specific explanation as to how the second clause permits non-disclosure of the records sought. Considering the factors in the PETA decision, it is unclear how disclosure of the withheld records would result in personal embarrassment to an individual of normal sensibilities. Further, the Department has not demonstrated how the withheld records contain intimate details of a highly personal nature, nor addressed whether this information is available from other sources. Therefore, I find the Department has not met its burden to withhold the responsive records in their entirety under the second clause of Exemption (c). Exemption (I) The Department also indicated it withheld responsive records pursuant to Exemption (f) of the Public Records Law. 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.

Chief Jody D. Kasper SPRl 7/1692 Page 6 December 21, 2017 As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under its Exemption (f) claim, the Department contends that disclosure of witness information would be contrary to the public interest. The Department asserts that "[w]ithout an assurance of confidentiality of investigatory materials, witnesses would be discouraged from coming forth and speaking openly with supervisors and administrators in matters alleging police misconduct." Claiming that disclosure of the records would severely hinder law enforcement in its future internal investigative efforts, the Department indicates that "[i]t is critically important that witnesses, particularly subordinates and coworkers within [the Department's] building, feel comfortable bringing forth concerns about possible misconduct or other concerning behavior. The Department indicates that "[i]f the names and statements of witnesses in this matter were released, . . . should there be concerns about employee misconduct or policy violations in the future, employees would not feel comfortable reporting this behavior knowing that their names and statements would be eventually released." The Department further indicates that, "the identified lieutenant is remaining employed by our police department and will continue to serve as an administrative supervisor. In order to prevent the remote possibility of unequal treatment of subordinates who may have made statements as part of this investigation, it is imperative that the details remain confidential." In discussing where redaction of public records may be appropriate to preserve the anonymity of voluntary police officer witnesses, the Court in Antell found the following as reasons for non-disclosure: (1) the complaints made alleging on-the-job misconduct of a police chief triggered the internal affairs investigation; (2) the police officers may continue to be supervised by the police chief; and (3) disclosure may expose the police officers to animus or criticism by their supervisors or colleagues, which could then lead to further discord within the department. Antell, 52 Mass. App. Ct. at 245- 46, 248. In a telephone conversation with the Department, this office was informed that some of the witnesses voluntarily made statements which triggered the internal affairs investigation while others needed to be questioned by their supervisor before providing a response.

Chief Jody D. Kasper SPR17/1692 Page7 December 21, 201 7 Based on the Department's response, it is unclear how the police officer witnesses' statements given during the internal affairs investigation process were voluntary, meriting the protection afforded voluntary witnesses under Exemption (f). Accordingly, given the finding in Antell, I find the Department has not demonstrated how all the police officers were voluntarily witnesses. See also, Reinstein, 378 Mass. at 292 (discussing the voluntary status of police officer and citizen witnesses, concluded that a police officer would be obliged to make an incident report or respond to questions in the course of a firearm investigation, on the pain of otherwise losing his job); Globe Newspaper Co., 419 Mass. at 864 (holding that there was no sufficient basis under the privacy exemption to withhold the identities of police officers interviewed by Internal Affairs Division investigators). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Ms. Cutts 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: Emily Cutts