Walt Buteau v. Seekonk, Town of - Police Department (SPR 20180701)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2018 SPRlS/701 Craig A. Mace Chief of Police Town of Seekonk Police Department 500 Taunton Avenue Seekonk, MA 02771 Dear Chief Mace: I have received the petition of Walt Buteau, an Investigative Reporter for WP RI-TV appealing the response of the Town of Seekonk Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Buteau requested a copy of: 1. The internal affairs report regarding an identified officer; 2. The resignation letter from the identified officer and the Town's response; and 3. All emails about the identified officer from January 2014-June 2014. Accompanying its April 10, 2018 response, the Department provided Mr. Buteau with a copy of the 2011 internal affairs investigation report regarding the identified officer. However, the Department is withholding the 2013 internal affairs report regarding the identified person pursuant to Exemption (a), the second clause of Exemption (c) and Exemption (f). The Department is also withholding the resignation letter of the identified officer under the first clause of Exemption ( c) as personnel information, and emails concerning the identified officer under the common law attorney-client privilege. Dissatisfied with the Department's denial of the 2013 internal affairs report, the resignation letter and the emails, Mr. Buteau petitioned the Supervisor of Records (Supervisor). 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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 Craig A. Mace SPR18/701 Page 2 May 25, 2018 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, § 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 exemption or exemptions upon which the withholding is based ... "); 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). The Department's April 10, 2018 response The Department indicated that the internal affairs investigation report is being withheld, in its entirety, pursuant to G. L. c. 41, § 97D as it operates through Exemption (a), the second clause of Exemption (c) and Exemption (f). The Department is also withholding the resignation letter of the identified person under the personnel clause of Exemption (c ), and the emails pursuant to the common law attorney-client privilege. Exemption (a) -Internal affairs investigation report Exemption (a), lmown 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. G. L. C. 41, § 97D The Department contends that the entire internal affairs report may be withheld pursuant G. L. c. 41, § 97D as it operates through Exemption (a). G. L. c. 41, § 97D states:

Chief Craig A. Mace SPR18/701 Page 3 May 25, 2018 All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality .... G. L. C. 41, § 97D. You assert that, "[w ]ithout confirming or denying the existence of such information, any police reports that contain information explicitly protect by G. L. c. 41, § 97D, cannot be disclosed, without the statutorily required authorization." However, it is unclear whether any portions of the report contain this information, and whether such information could be redacted from the content of the report. I find that the Department has not met its burden of specificity in claiming Exemption (a) to withhold an entire internal affairs report. Exemption (c) - resignation letter and internal affairs investigation report The Department is withholding the resignation letter, in its entirety, under the first clause of Exemption ( c) as personnel information. 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). First clause ofE xemption (c) The first clause, relevant to this appeal, creates a categorical exemption for personnel 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 be of a sufficiently personal nature to warrant exemption. Globe Newspaper Company, 338 Mass. 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). 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.

Chief Craig A. Mace SPR18/701 Page 4 May 25, 2018 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). 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 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 Department did not meet its burden of specificity in demonstrating that the first clause of Exemption ( c) applies to withhold the resignation letter of an identified person. The April 10th response regarding the resignation letter is a blanket claim of Exemption ( c ), without specifying whether the record is falls into the "core categories of personnel information that are 'useful in making employment decisions regarding an employee."' See Worcester Telegram & Gazette Corp, 58 Mass. App. Ct. at 5. In a May 21st discussion, the Department's Legal Counsel, Janelle M. Austin of KP Law informed a Public Records Division attorney that she would provide Mr. Buteau with more specificity to support the Department's claim that the resignation letter is a personnel record under Exemption ( c ), and not subject to public disclosure. Internal Affairs investigation 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" or other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester, 58 Mass. App. Ct. at 2. 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,

Chief Craig A. Mace SPR18/701 Page 5 May 25, 2018 harassment), and other criminal acts that would undermine the relationship of 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., 419 Mass. at 866 (emphasis added). Second clause ofE xemption (c) - privacy In response to the request, you state, "[w]ith respect to the internal affairs case, 2013-2- IA, the Department asserts that under the applicable state privacy laws, the confidential police internal affairs records [Mr. Buteau] seek[s] may only be provided with the express authorization of the individual(s) involved." The Department further indicates, "[i]n this instance, following the Department's review, internal affairs report, 2013 will be withheld since they include highly personal information that may constitute an unwarranted invasion of personal privacy regarding a specifically named individual." 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, 4 77 Mass. at 291. The

Chief Craig A. Mace SPR18/701 Page 6 May 25, 2018 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. Based on the Department's response it is unclear why the internal affairs investigation report in its possession which may contain "intimate details of a highly personal nature" must be withheld in its entirety. Further, because the Worcester Court reasoned that openness in a police internal affair investigatory process was necessary to foster the public trust in law enforcement, it is not apparent how the public interest in obtaining the requested information does not substantially outweigh the privacy interest of the identified officer. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7-8. Accordingly, because there is a compelling public interest in favor of disclosure not outweighed by identified privacy interests, I find the Department has not met its burden of demonstrating the responsive internal affairs investigation report, in its entirety, may be withheld as personnel information and private information under both clauses of Exemption ( c ). Exemption (f) - Internal affairs investigation report The Department also claims Exemption (f) in support of its position to withhold, in its entirety, the internal affairs investigation report. 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). 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, 3 78 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." Id. at 289-90. With respect to Exemption (f), the Department asserts "[w]here identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, the responsive records will be withheld in their entirely." I find that the Department has not met its burden in demonstrating that Exemption (f) permits

Chief Craig A. Mace SPR18/701 Page 7 May 25, 2018 withholding of the entire report, and that the report cannot be redacted to protect the voluntary witnesses and complainants. Common law attorney-client privilege - emails The Department also contends that the email communications pertaining to the identified officer are protected under the common law attorney-client privilege. There is an implicit assumption that a governmental entity "may assert attorney-client privilege to protect documents against disclosure where they contain communications between lawyer and client for purpose of obtaining legal advice." Brossard v. University of Massachusetts, 9 Mass. L. Rep. 471 (1998), referencing Judge Rotenbere Educ. Center, Inc., v. Comm'r of the Devt. of Mental Retardation (No. 11,424 Mass. 430 (1997). The issue of whether this privilege extends to governmental entities was discussed in the affirmative by the Massachusetts Supreme Judicial Court (Court). Suffolk Constr. Co., Inc., 449 Mass. 444. The Court found that the privilege applies in the public sector. The Supervisor has the authority to determine whether records may be withheld as privileged. See Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609,614-615 (1993). The Court affirmed the "general rule" that when matters are "communicated by a client to his attorney, in professional confidence, the attorney shall not be at any time afterwards called upon or permitted to disclose in testimony." Suffolk, 449 Mass. at 448, quoting Foster v. Hall, 12 Pick. 89, 93 (1831 ). The Court, however, admonished that a governmental entity has the burden of proving the existence of the attorney-client privilege. Id. The Court requires governmental custodians to satisfy a three-step test to claim not only that an attorney client relationship exists, but that, with respect to the privileged materials: (1) the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) the communications were made in confidence; and (3) the privilege as to these communications has not been waived. Suffolk Constr. Co., 449 Mass. 450, fn 9, citing Matter of the Reorganization of Elec. Mut. Liab. Ins. Co. Ltd. (Bermuda), 425 Mass. 419,421 (1997); see also Hanover Ins. Co. v. Rapo & Jepsen Lns. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). The Department has not demonstrated that each of the emails were sent and received in a search for legal advice, that the communications were made in confidence and that the privilege regarding the responsive emails has not been waived. The fact that an attorney may be copied on an email communication does not automatically render the communication protected from

Chief Craig A. Mace SPR18/701 Page 8 May 25, 2018 disclosure under the attorney-client privilege. I find that the Department has not met its burden of claiming the attorney-client privilege with specificity. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor shall not inspect the record but "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § lOA(a) (emphasis added). Given that the Department has not met its burden in claiming the attorney-client privilege to withhold the emails, the Department must provide Mr. Buteau with a response that is in compliance with the requirements in Suffolk and G. L. c. 66, § 1O A. It is my understanding that during the May 21st discussion with this office, Attorney Austin stated that she would provide Mr. Buteau with a privilege log or index of the emails that the Department is withholding under the attorney-client privilege. In camera inspection of internal affairs record(s) At this time, in order to facilitate a final determination as to the applicability of the exemption claims made by the Department to the entirety of the internal affairs record(s), I request that the Department provide this office an un-redacted copy of the responsive internal affairs investigation records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records 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, § 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.

Chief Craig A. Mace SPRlS/701 Page 9 May 25, 2018 The Department 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 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 Department is ordered to provide the internal affairs investigation record(s) for an in camera inspection without delay. The Department is also ordered to provide Mr. Buteau with a detailed response to demonstrate the Department's claim that the resignation letter may be withheld as personnel under Exemption (c), and is ordered to provide Mr. Buteau with a privilege log or index of the email records under the common law attorney-client privilege in compliance with the Public Records Law and Suffolk, and provided in a manner consistent with this order, the Public Records Law and its Regulations within ten ( 10) 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: Janelle Austin, Esq., KP Law