Emily Cutts v. Hadley, Town of - Police Department (SPR 20180223)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 6, 2018 SPR18/223 Sergeant Mitchell Kuc, Jr. Town of Hadley -Police Department 15 East Street Hadley, MA 01035 Dear Sergeant Kuc: I have received the petition of Emily Cutts of the Daily Hampshire Gazette appealing the response of the Town of Hadley 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 January 29,2018, Ms. Cutts requested "[a]ny and all documents regarding investigations into departmental rules and policy violations by" an identified officer. Ms. Cutts also requested footage of an incident which occurred on April 3, 2017, involving the identified officer. The Department provided responses on February 7, 2018 and February 8, 2018, which included a portion of the responsive records but denied access to others pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's responses, Ms. Cutts petitioned this office and this appeal, SPR18/223, 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, § lO(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

Sergeant Mitchell Kuc, Jr. SPR18/223 Page2 March 6, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 February fh and 8th responses In its February 7, 2018 response, the Department indicated that it possessed responsive records but denied access to the records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. On February 8, 2018, the Department provided the identified officer's resume to Ms. Cutts. The Department indicated that the following exemptions are applicable to withhold responsive records. Exemption (a) The Department claimed it withheld responsive records pursuant to G. L. c. 214, § 1B, as it operates 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. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department has cited G. L. c. 214, § 1B as applicable to withhold the records pursuant to Exemption (a). The statute provides in relevant part:

Sergeant Mitchell Kuc, Jr. SPR18/223 Page 3 March 6, 2018 Right of Privacy; Remedy to Enforce. A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § lB. Under its Exemption (a) claim, the Department indicated that" ... where a resolution of criminal allegations has yet to occur on the very incident at question in the requested reports, the person at issue has a privacy interest in such allegations, and the nature of the allegations may be considered an intimate detail highly personal in nature." The Department referenced a Supervisor ofRecords determination, SPR84/222 (Mar. 6, 1985), in its response. Exemption (c) The Department indicated that 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)-personnel 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 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). The courts have 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 Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.l5. Further, the public has an

Sergeant Mitchell Kuc, Jr. SPR18/223 Page 4 March 6, 2018 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. ofWestport, 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 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 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., 41 9 Mass. at 866 (emphasis added). Under the first clause of Exemption (c), the Department, citing to the Wakefield and Worcester decisions, indicated that "disciplinary recommendations and decisions made by the Chief of Police are exempt from disclosure ... , even where such information and documents is [sic] contained in an internal affairs investigation 'file' or part of the internal affairs record. As such, those records are being withheld in their entirety."

Sergeant Mitchell Kuc, Jr. SPR18/223 Page 5 March 6, 2018 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. I d. 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 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 indicated that after its careful review of the records, "it is in the Department's position that the requested records contain unresolved and still pending criminal allegations regarding a specifically identified individual, which is the subject of an ongoing criminal review and prosecution of [the identified officer] by the Federal Bureau ofinvestigation ('FBI') and theU.S. Attorney's Office in the above referenced case." The Department claimed that "[r]elease of the requested records at this time absent [sic] may therefore implicate privacy rights of the individuals mentioned therein, including, for example, innuendo and speculation as to the subject's reputation and professional competence in light of the pending criminal matter. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 292 (1979) ...." The Department concluded that" ... it cannot disclose the requested investigative reports/videos at this time without potentially violating the privacy interests of third parties ..."

Sergeant Mitchell Kuc, Jr. SPR18/223 Page 6 March 6, 2018 Exemption (f) The Department claimed 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 ofBoston, 378 Mass. 281, 290 n.l8 (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. Under its Exemption (f) claim, the Department indicated that "the April 3, 2017 incident is still under review by the U.S. Attorney's Office with an initial status conference scheduled in the criminal matter for March 27, 2018 in the U.S. District Court in the pending criminal prosecution brought by the U.S. Attorney's office." The Department asserted that because the criminal matter is active at this time, "premature disclosure of the requested reports which are inextricably linked with the criminal case would ... compromise the ongoing criminal matter and criminal prosecution of' the identified officer. Also, noting that Exemption (f) permits investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation, the Department indicated that "absent authorization and court order to produce information obtained during the investigation, the names, addresses and identifying details of voluntary witnesses or complainants contained in the investigative reports may therefore be withheld from disclosure permanently. Reinstein, 378 Mass. at 290." The Department concluded that "[w ]here identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, the responsive record will be withheld in its entirety."

Sergeant Mitchell Kuc, Jr. SPR18/223 Page 7. March 6, 2018 Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10 ( d)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... ");see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records. Therefore, the Department must identify the type ofrecord(s) it has in its possession that it withheld and explain which specific records fall within each of the exemptions claimed by the Department. Although the Department cites G. L. c. 214, § 1B in support of its position to withhold records under Exemption (a), this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). With respect to the Department's Exemption (c) claim, although disciplinary documentation would generally be exempt from disclosure under the first clause of Exemption (c) as personnel file or information, because it constitutes one of the core categories of information exempt from disclosure as indicated in Wakefield, it is unclear why the Department is withholding the records in their entirety. Wakefield 431 Mass. at 798. Additionally, it is unclear how the responsive records relating to police disciplinary matters are not similar to those determined to be public in the Worcester decision. Also, while the Department claims that "release of the requested records at this time absent [sic] may therefore implicate privacy rights of the individuals mentioned therein ... ,"it is unclear how the internal affairs records contain intimate details of a highly personal nature. Further, the Department has not demonstrated how disclosure would result in personal embarrassment to an individual of normal sensibilities, nor addressed whether this information is available from other sources. Id. In addition, the Department did not provide information regarding the balancing test set-out in the second clause of Exemption (c) which examines whether the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy. PETA, 4 77 Mass. at 291-92. Further, in its response, the Department indicated that "absent authorization or a court order to produce information obtained during the investigation, the names, addresses and identifying details of voluntary witnesses or complainants contained in the investigative reports

Sergeant Mitchell Kuc, Jr. SPR18/223 Page 8 March 6, 2018 may therefore be withheld from disclosure permanently. Reinstein, 378 Mass. at 290." Based on the Department's response, it is unclear how these witnesses are voluntary, thereby meriting the protection under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (discussing the appropriateness of redacting the identities of voluntary witnesses). Also, although the Department indicated that it withheld responsive records because "identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record," it is unclear how identifying information could be "inextricably intertwined with other information ..." such that the records cannot be redacted to protect the confidentiality of voluntary witnesses. The Department has also not met its burden of explaining why the requested records cannot be redacted under the exemptions in the Public Records Law, and the balance of the record provided to Ms. Cutts. See G. L. c. 66, § 1O (a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you before the issuance of this decision. Conclusion Accordingly, the Department is hereby ordered to provide Ms. Cutts responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, ~~ Supervisor of Records cc: Emily Cutts