Dan Shea v. Middlesex County Sheriff's Office (SPR 20180695)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 23,2018 SPR181695 Brendan Kennedy Deputy Public Information Officer-RAO Middlesex County Office of the Sheriff 400 Mystic Avenue; 4t" Floor Medford, MA 02 155 Dear Mr. Kennedy: I have received the petition of Dan Shea of the New England Police Benevolent Association, Local 500 (NEPBA) appealing the response of the Middlesex County Sheriffs Office (Sheriffs Office) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, NEPBA requested a copy of an investigation report from an investigation conducted by an independent investigator of an identified employee due to a complaint by another employee. In its April 20,201 8 response, Osvaldo Vidal, Superintendent in the Sheriffs Office denied the request, in its entirety, indicating that the investigation report is confidential. Dissatisfied with the response, Mr. Shea petitioned the Supervisor of Records (Supervisor), and as a result this appeal was opened. 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, 4 1O A(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, 5 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, 5 1O (b)(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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (1995) (custodian has the 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

Brendan Kennedy Page 2 May 23,2018 burden of establishing the applicability of an exemption). Status of the requester; reason for the request The Public Records Law does not distinguish between individuals seeking public records. Mr. Shea should be advised that his status as a member of a union bargaining unit does not provide him with any greater right of access to the record than any other person in the public realm. G. L. c. 66, 5 10(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 37 1 Mass. 59,64 (19 76). 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, the reason for a request under the Public Records Law plays no part in a determination as to whether the record should be disclosed to the public. The May 18,2018 response of the Sheriff's Office After the Sheriffs Office was contacted by this office, the Sheriffs Office provided a second response on May 1 s th. T he Sheriffs Office indicated in its May 1g hr esponse that the report has been withheld, in its entirety, pursuant to Exemptions (c), and (f) of the Public Records Law. 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 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 of Exemption (c) The first clause, relevant to this appeal, creates a categorical exemption for personnel Id. information that relates to an identifiable individual and is of a "personal nature." 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 termination 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). The courts have also discussed specific

Brendan Kennedy Page 3 May 23,201 8 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. 11-011 84-A (June 14,2013 ). Within the context of the first clause of Exemption (c), the Supreme Judicial Court has determined that records are "personal" if they pertain to a particular individual. Wakefield, 43 1 Mass. at 799. In this matter, the redacted content is "personal" because it does pertain to a particular individual in its entirety. 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. 15 1, 158 (19 79). 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). In its May 1g th response, the Sheriffs Office indicates that the request for the investigation report is being denied because it includes personnel information relating to two employees of the Sheriffs Office. However, the Sheriffs Office has not met its burden of specificity in explaining whether the report is one of the core categories of records that were useful in making an employment decision regarding an employee under the first clause of Exemption (c). Worcester, 58 Mass. App. Ct. at 5. Second clause of (c) -privacy 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 Id. disputes and reputation. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Brendan Kennedy Page 4 May 23,2018 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 Id. in a law-abiding and efficient manner. at 292. It is unclear whether the Sheriffs Office is withholding the report or portions of the report under the second clause of Exemption (c) in addition to the first clause of Exemption (c). The Sheriffs Office initial response indicated that the report could be withheld due to its confidential nature. I find that the Sheriffs Office has not met its burden of specificity in claiming Exemption (c) as personnel or private information. Exemption (%) 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 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 LexinHon, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. 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 id. at 289-290. Your May 1g th response states, "[tlhe information requested relates to the processes and integrity of how the Sheriffs Office conducts internal investigations regarding employee allegations of any misconduct which would jeopardize the effectiveness of the Sheriffs Office to properly investigate such allegations in the future." It is unclear how disclosure of the report, even in a redacted form, will jeopardize the possibility of effective law enforcement in the future, and how the Sheriffs Office's disclosure of how they proceed with internal investigations would not be in the public's interest.

Brendan Kennedy Page 5 May 23,2018 SpeciJicity in responding and claiming exemptions Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 10(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. The Sheriffs Office did not meet its burden of demonstrating how the responsive report, in their entirety, is exempt from disclosure under Exemptions (c) and (f). See Reinstein v. Police Cornrn'r of Boston, 378 Mass. 28 1,289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). Records custodians must produce any non-exempt, segregable portions of public records. G. L. c. 66, 5 10(a). It is unclear whether the investigation report can be provided in a redacted form. In camera review At this time, in order to facilitate a final determination as to the applicability of the exemption claims made by the Sheriffs Office to the entirety of the report, I request that the Sheriffs Office provide this office an un-redacted copy of the responsive investigation report for in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the withheld portions of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). Furthermore, this office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The Sheriffs Office may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records, or redacted portions of the responsive records. However, please be advised that, unlike the materials provided for in camera

Brendan Kennedy Page 6 May 23,2018 review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the Sheriffs Office is ordered to provide this office with an un-redacted copy of the investigation report without delay. Sincerely, w Rebecca S. Murray Supervisor of Records cc: Dan Shea (via email)