Sean Bucci v. Massachusetts State Police (SPR 20181026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 25,2018 SPR1811026 Jenniffer Migliaccio, Esq. Office of the Chief Legal Counsel Department of State Police 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, § 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 Anest/Search/ 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 20 15 (. . .). 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 ,3 . . . 3. "[The identified Trooper's] application to the [Department's] Academy, to include all essays, background checlts, 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 Federal inquires, Any Federal or Dept of Justice interviews or report, Any Background report of [the identified Trooper's] participation or cooperation in any 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 Migliaccio, Esq. Page 2 July 25,2018 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." Previous appeal This request was the subject of a previous appeal. See SPR18175 1 Determination of the Supervisor of Records (June 6,2018 ) (June 6thd etermination). I closed my June 6"' determination by ordering the Department 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 the order, the Public Records Law, and its Regulations. Following the June 6thd etermination, in a response dated July 2,20 18, the Department provided additional information as to the applicability of Exemptions (a), (c), and (f) to withhold portions of the responsive records in their entirety. G. L. c. 4, 5 7(26)(a), (c), (f). 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 10A(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 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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 July 2"%esponse In its July 2,201 8 response, the Department indicates that the requested records are exempt from disclosure pursuant to the following exemptions. Exemption (a) The Department claims it withheld responsive records under the Criminal Offender

Jenniffer Migliaccio, Esq. Page 3 July 25,2018 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. 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. Under its Exemption (a) claim, the Department reiterates 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 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 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

Jenniffer Migliaccio, Esq. Page 4 July 25,2018 offender record information shall not include information concerning any offenses which are not punishable by incarceration. Prohibition 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 lmowingly 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 The first clause creates a categorical exemption for personnel information that relates to Id. 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 &

Jenniffer Migliaccio, Esq. Page 5 July 25,2018 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 ,C ornm 43 1 Mass. 792,798 (2000). The courts have also 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. 11-011 84-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. 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). Under the first clause of Exemption (c), the Department contends that Mr. Bucci is seeking material related to the identified Trooper's hiring and employment files and is exempt from disclosure pursuant to Exemption (c). Citing Wakefield, the Department claims that it is ". . . reiterating its position that hiring files, job applications, and background investigations are exempt from public dissemination." The Department claims that "[tlhe records sought (entire hiringlemployment file, job applications and background investigations) are the core documents that are used in making employment decisions regarding an employee. Such documents are unequivocally personnel records and are the exact type of records that this exemption is intended to protect." The Department also claims it redacted portions of the internal affairs report because it "contain[s] personnel information including personnel ToIFrom memoranda from [the identified Trooper] to a superior as well as administrative rights personnel form(s). The Personnel memoranda and forms have been redacted accordingly." 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., 39 1 Mass. 1,9 (1 984); Attorney Gen. v. Assistant Cornrn'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

Jenniffer Migliaccio, Esq. Page 6 July 25,2018 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 a. 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). 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 the second clause of Exemption (c), the Department indicates that it redacted the internal affairs investigation report because "some of the information in IA20 16-0009 contains private information that [Exemption (c)] was intended to protect." The Department further asserts that "job applications and background investigative forms maintained by [it] contain personal/private information and other data gleaned through a confidential investigative process and are, in whole or part, also exempt under an array of additional exemptions, including but not limited to the privacy [exemption]. . ." fi 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. Bou~avs. Chief of Police of Lexington, 371 Mass 59,62 (1 976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attornev Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v.

Jenniffer Migliaccio, Esq. Page 7 July 25,2018 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." Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department asserts 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 "[llaw enforcement has an interest in encouraging individuals to speak with police without apprehension that such information would be made a public record" and contends that "[tlhe disclosure of the names of witnesses and individuals involved may deter individuals from providing information in future investigations." As such, the Department indicates that it has redacted names of individuals referenced and transcript of interviews. Burden of specificity; segvegable 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 511. Because the Department did not identify what records it has in its custody that are responsive to Mr. Bucci's request, I find that the Department did not comply with G. L. c. 66, tj lO(b)(iv). The Department is again reminded that 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3)(~)(4).H ere, although the Department claims it withheld hiring and employment files and job applications, it remains unclear what categories of records are included within each file or whether the files contain categories of records as reflected in Mr. Bucci's request. Therefore, the Department must identify the types or categories of records within each file that it has in its possession. With respect to Exemption (a), the Department indicates that it withheld the compact disc containing the CJIS data and queries from the identified Trooper's user's account. Although the Department claims the "printout of the queries that were the subject of the IA investigation were contained in the documents provided," it remains unclear how the CORI Act and DPPA permit the Department to withhold the records on the compact disc in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L, c. 66, 5 10(a).

Jenniffer Migliaccio, Esq. Page 8 July 25,2018 With respect to the first clause of Exemption (c), the Department is advised that a personnel file or information "is not limited to nor does it extend to, all 'files or information' that are located physically in an individual employee's personnel file." Wakefield, 43 1 Mass. at 797 n. 13; see also Globe Newspaper Co., 388 Mass. at 435 (not every bit of information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption's protection); Worcester, 58 Mass. App. Ct. at 5 (personnel file or information in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository). Therefore, a custodian's designation of materials as personnel file or information is not dispositive. Worcester, 58 Mass. App. Ct. at 5-6. Consequently, while it appears that portions of the requested records may potentially fall under the first clause of Exemption (c), it remains unclear how all of the records within the identified Trooper's hiringlemployment files each constitute one of the "core categories of personnel information," such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the first clause of Exemption (c). See id. 58 Mass. App. Ct. at 5; Waltefield, 431 Mass. at 798. With respect to the second clause of Exemption (c), although the Department asserts that "job applications and background investigative forms maintained by the Department contain personallprivate information . . .," in light of the PETA analysis, I find the Department has not met its burden to withhold records within the identified Trooper's hiringlemployment files in their entirety under the second clause of Exemption (c). See June 6'" determination. With respect to Exemption (f), in my June bth determination, I found that "to the extent that voluntary witness information is within the responsive records, those portions may be properly withheld. . . ." June 6''' determination. 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. In Camera Inspection of Records In my June 6'h determination, I ordered the Department 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. See June 6'" determination. As of the date of this determination letter, the Department has not submitted these records. Accordingly, the Department is again ordered to provide this office with an un-redacted copy of the above referenced records for in camera inspection without delay. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to withhold the records in their entirety, accordingly the Department is ordered to review the responsive records, redact where necessary and provide Mr. Bucci with the requested records,

Jenniffer Migliaccio, Esq. Page 9 July 25,201 8 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: Sean Bucci