Sean Bucci v. Massachusetts State Police (SPR 20180751)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 6,2018 SPR181751 Jenniffer P. Migliaccio, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0 1702 Dear Attorney Migliaccio: I have received the petition of Sean Bucci appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 23, 2018, Mr. Bucci made four separate requests for the following records regarding an identified Trooper. 1. "[The identified Trooper's] - Employment file and hiring file to include all letters of recommendation and oral recommendations, resume, vetting and background check information, violations committed and results of violation, Internal affairs investigation reports, Also to include a detailed list of every ArrestISearchl investigation that K-9 Trooper . . . and [his or her] K-9 Kojak while assigned to [the identified Trooper] has participated in and every case that Trooper . . . has testified in." 2. "Former State police Dispatcher . . ., Applications for employment, resume's [sic], essays, employment file and hiring file to include all letters of recommendation and oral recommendations, resume, vetting and background check information, violations committed and results of violations, Internal affairs investigation reports. From 2006 to 201 5 (. . .). Also to include letters of recommendation given to . . . to be admitted to MSP Academy and the [Department] before [he or she] was hired as MSP Trooper . ..7, 3. "[The identified Trooper's] application to the [Department's] Academy, to include all essays, background checks, vetting reports, letters of recommendations and references." 4. "Any and all information regarding [an identified individual's] background check of MSP Trooper . . . prior to and after becoming hired as MSP Dispatcher and MSP Trooper, including all reports, Interviews, [CORI] inquires, Cross reference checks, including all former cross reference address inquires including . . . Naddis checks, All 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

Jenniffer P. Magliaccio, Esq. Page 2 June 6,201 8 Federal inquires, Any Federal or Dept of Justice interviews or report, Any Background report of [the identified Trooper's] participation or cooperation in any State or Federal Drug or Money Laundering Conspiracy or any criminal activity, All oral or written letters of reference on [the identified Trooper's] behalf and any interview of people who gave oral or written references and any negative information gathered during the . . . background check." The Department provided a response on May 1 1,2018 which included responsive records in redacted form. The Department also withheld portions of the records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c), (f). Unsatisfied with the Department's response, Mr. Bucci petitioned this office and this appeal, SPR18175 1, 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, 5 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, 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 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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, 5 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 May 11"' response In its May 11 ,201 8 response, the Department indicates that it provided violations committed and results of violations reports, internal affairs investigation report, and lists of all arrests, search or investigation the identified Trooper was assigned to or worked on in some capacity. The Department indicates, however, that any local police department incidents are not reflected on the list provided because the local police departments would have been the lead investigators. The Department asserts that records which were withheld are exempt from disclosure pursuant to the following exemptions.

Jenniffer P. Magliaccio, Esq. Page 3 June 6,2018 Exemption (a) The Department claims it withheld responsive records under the Criminal Offender Record Information (CORI) Act and Federal Driver Privacy Protection Act (DPPA), as they operate 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 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. 15 1, 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 indicates that it withheld a compact disc containing CJIS data from the identified Trooper's user account under the CORI Act and DPPA. The Department cites the CORI Act, G. L. c. 6, 5 167, and DPPA, 18 U.S.C. 5 2721, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [Rlecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before

Jenniffer P. Magliaccio, Esq. SPRl817.51 Page 4 June 6,2018 arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. The DPPA includes certain prohibitions on release and use of certain personal information from State motor vehicle records: . (a) . . A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(l), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual's driver's license or affect the administration of organ donation initiatives in the States. . . . 18 U.S.C. 5 2721(a). Exemption (c) The Department states 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 First clause of Exemption (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

Jenniffer P. ~a~liacciEos,q . Page 5 June 6,2018 first clause, relevant to this appeal, creates a categorical exemption for personnel information Id. 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 43 1 Mass. 792,798 (2000). The courts have also discussed specific categories of 3 records that may be redacted under the first clause. Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 1 1-01 184-A (June 14,201 3). 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. 15 1, 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). Second clause of Exemption (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. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number).

Jenniffer P. Magliaccio, Esq. Page 6 June 6,2018 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. Under its Exemption (c) claim, citing to Wakefield, the Department asserts that because Mr. Bucci's requests seek "materials specifically relating to all of [the identified Trooper's] hiring and employment files, (including background check(s))," these materials are exempt from disclosure. The Department indicates that certain information that was redacted from the internal affairs report and violations committed and results of violations reports, constitute personnel and private information that Exemption (c) was intended to protect. 0 Exemption The Department indicates that it redacted 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 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. 28 1,290 n. 18 (19 79). 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. 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,

Jenniffer P. Magliaccio, Esq. Page 7 June 6,2018 Exemption (f) will allow the withholding of the names and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Globe Newspaper Co., 38 8 Mass. at 43 8 (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). Under its Exemption (f) claim, the Department asserted that Exemption (f) "recognizes that disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest." Bougas, 371 Mass at 62-63. The Department further asserts that because "[llaw enforcement has an interest in encouraging individuals to report matters and cooperate with investigations without apprehension that such information would be made a public record [I, . . . [d]isclosure of the names of witnesses and individuals involved may deter individuals from providing information in future investigations. [Exemption (f)] therefore, allows the permanent withholding of the name(s) and identifying details of witnesses. Accordingly, the Department has redacted names of individuals referenced." The Department indicates that it also "redacted the transcript(s) of interviews ." 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, 5 lO(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 . . ."); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. 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 (RAO) must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 CMR 32.06(3)(~)(4). Here, the Department withheld portions of the responsive records without identifying the records. Therefore, the Department must identify the type of record(s) it has in its possession that it withheld. With respect to Exemption (a), the Department indicates that it withheld the compact disc containing the CJIS data on audits "conducted to ensure there was not a continuing pattern of improper inquires," by the identified Trooper. However, based on its response, it is unclear how the CORI Act and DPPA permit the Department to withhold the records in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 10(a); Reinstein v. Police Comrn'r of Boston, 378 Mass. 28 1,289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Jenniffer P. Magliaccio, Esq. Page 8 June 6,2018 With respect to Exemption (c), although records may potentially fall under the first clause of Exemption (c) as personnel records, based on the Department's response, it is unclear the type(s) of records the Department possesses. As a result, I find that the Department must identify the records it possesses and explain how each record constitutes one of the core categories of records the Wakefield court determined to be exempt as personnel information. Further, the Department claims it redacted certain information from the violations committed and results of violations reports and the internal affairs investigation report because they contain private information. However, considering the PETA analysis, the Department has not demonstrated how the redacted portions contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. Also, 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, 477 Mass. at 291-92. With respect to Exemption (f), the Department claims it redacted names and identifying details of witnesses as well as the transcript of interviews. As such, I find that to the extent that voluntary witness information is within the responsive records, those portions may be properly withheld. See Antell, 52 Mass. App. Ct. at 248 (discussing the appropriateness of redacting the identities of voluntary witnesses). In Camera Inspection of Records In order to facilitate a determination as to the applicability of the exemption claims made by the Department, the Department is hereby ordered to provide this office an un-redacted copy of the responsive "IA 2016-0009" report and "violation committed and results of violations reports" 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 record to your custody and issue an opinion on the public or exempt nature of the record. 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 (198 1) (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. 950 C.M.R. 32.08(4)(c). 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

Jenniffer P. Magliaccio, Esq. Page 9 June 6,2018 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. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the Department is ordered to provide Mr. Bucci with an explanation of its position regarding the applicability of Exemptions (a), (c) and (f) to the 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 must also provide this office with an un-redacted copy of the IA 2016-0009 and violation committed and results of violations reports without delay. Sincerely, V Rebecca S. Murray Supervisor of Records cc: Sean Bucci