Brian O'Connor v. Department of State Police (SPR 20181085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3,2018 SPR1811085 Michael B. Halpin, Esq. Chief Legal Counsel Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0 1702 Dear Attorney Halpin: I have received the petition of Brian O'Connor 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, in two separate requests on June 27,2018 Mr. O'Connor requested a copy of: All work files of certain troopers and/or all Department files regarding all background checks that were performed by the troopers of an identified Department employee for a position as a dispatcher and as a Department trooper since 2006; records requested include: 1. Reports; memos; letters of reference; oral references; names of persons interviewed and informed that the identified person was applying for a dispatcher position and for a trooper position; 2. Confirmations; reports; memos; oral or written references or letters from law enforcement employees/departments who were informed, interviewed, questioned or communicated regarding the identified person's application or background checks, including any employees of: e Peter K. Levitt, or others at the United States Attorney's Office in the District of Massachusetts; United States' Attorney or Assistant United States' Attorney; United States Drug Enforcement Administration; e Internal Revenue Service (criminal investigation); - 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

Michael B. Halpin, Esq. Page 2 August 3,20 18 US Department of Justice Tax Division (including John P. McAdams, Esq.); DEA Cross Border Initiative in Lowell, Massachusetts, including Special Agent Gregg Willoughby; Massachusetts State Police; Haverhill Police Department; Lowell Police Department; Salem Police Department; Wilmington Police Department; North Reading Police Department; Essex County District Attorney's Drug Task Force; Essex County Sheriffs Department; and The Federal Organized Crime Drug Enforcement Task Force. The Department provided a response on July 19,201 8 denying the request in its entirety under Exemption (c) and Exemption (f) of the Public Records Law. The July 19~r"e sponse from Department Staff Counsel Jenniffer Migliaccio indicates, "the Department received your two public records requests submitted on June 27,201 8, seeking any and all background check investigative records pertaining to [an identified Trooper] for both her position as a Dispatcher as well as her position as a Trooper. On July 3,2018 , you submitted a modified public records request clarifying your previous submission based on information that you had received regarding the background check process." As a result of the Department's July 19~r"e sponse, Mr. O'Connor petitioned the Supervisor of Records (Supervisor) and this appeal was opened. In his petition to the Supervisor, Mr. O'Connor indicates that he made his request on June 27,2018 , but did not receive a response within 10 days. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within 10 business days of receipt of the request. G. L. c. 66, 5 10(a),(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, 5 10(b). However, whle Mr. O'Connor states that the Department did not provide him with a response within 10 days, the Department's July 19'~re sponse indicates that on July 3rdM r. O'Connor modified and clarified his previous submission of June 27'" based on information he had already received about the background check process. I note that Mr. O'Connor did not provide this office with a copy of his July 3rdm odified request sent to the Department. Therefore, it is unclear if the Department previously responded to Mr. O'Connor, and what records Mr. O'Connor has already received. Mr. O'Connor is reminded that when petitioning the Supervisor for an appeal, the requestor shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses. See 950 C.M.R. 32.08(1)(g).

Michael B. Halpin, Esq. Page 3 August 3,2018 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) (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. Flatlep, 41 9 Mass. 507, 5 11 (1 995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, fj lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tlze Department's July 19,2018 response In its July 1 9re~sp~on se, the Department indicates that it is in possession of responsive materials pursuant to the request. Attorney Migliaccio states: "two separate background check investigations were conducted on [the identified employee]. The first background check investigation was conducted in 2008 in relation to her employment application to become a Dispatcher. At that time, the Department utilized a modified background check for civilian dispatcher positions, which the then civilian Director of Dispatch services conducted. The trooper(s) assigned to the desk at the Fusion Center would assist with the law enforcement checks for this modified background check. Please note, the modified background check for civilian dispatcher positions was discontinued in 2009. In 201 3, the second background check investigation was conducted in relation to her employment application to become a Trooper." The Department is withholding the background check investigative records, in their entirety, under 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

Michael B. Halpin, Esq. Page 4 August 3,2018 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., 3 88 Mass. 427,432-33 (1 983). The first clause creates a categorical exemption for personnel information that relates to an Id. 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 Cornrn., 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 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 asserts, "the background check records are part of the employment application and hiring process and are used to make employment decisions regarding a potential employee, and thus are exempt under the personnel records exemption." To the extent the Department possesses employment application records useful in making employment decisions, these records may be withheld under Exemption (c). However, the Department has not identified what responsive records it has in its possession and how each of the records are exempt in their entirety. Consequently, I find the Department has not met its burden of specificity in claiming that the records, in their entirety, are records that may be withheld under the first clause of Exemption (c). Second clause of (c) -privacy Attorney Migliaccio also indicates, "additionally, background investigations maintained by the Department contain personallprivate information and other data gleaned through a

Michael B. Halpin, Esq. Page 5 August 3,201 8 confidential investigative process.. ." It is unclear what personal and private information the Department may be withholding under the second clause of Exemption (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 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 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 Aqric. Res., 477 Mass. 280,292 (20 17). 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). 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. The Department has not met its burden of demonstrating how the privacy clause of Exemption (c) would allow the Department to withhold the responsive records in their entirety. The Department has not demonstrated that disclosure of even portions of the records would result in personal embarrassment to an individual of normal sensitivities, or whether the records contain intimate details of a highly personal nature. Nor has the Department applied the PETA balancing test in regarding privacy versus the public's interest in knowing that public servants are carrying out their duties in a law-abiding and efficient manner. See PETA at 292. Exemption @,I The Department also claims that Exemption (f) applies to withhold the background check investigation records in their entirety. Exemption (f) permits the withholding of:

Michael B. Halpin, Esq. Page 6 August 3,2018 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 Lexindon, 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 Cornm'r of Boston 378 Mass. 28 1, 290 n. 18 (1 979). Exemption (f) invites a "case-by-case consideration" of -9 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. The Department claims that it may withhold the entire background investigation records because, "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." citing, Bouaas, 371 Mass. at 62-63. However, the Department has simply cited language from the Bouaas case without demonstrating how disclosure will specifically detract from effective law enforcement for the Department with this particular public records request. In the July 18 thr esponse, the Department also contends that it cannot disclose the background investigation records because law enforcement has an interest in encouraging individuals to come forward and give information freely with an assurance of confidentiality. The Department has not demonstrated why the records cannot be redacted under Exemption (f) to protect the identifying information of voluntary witnesses, informants, or complainants by redaction of identifying information. See Reinstein, 378 Mass. at 290 n. 18. Burden of specificity in claiming exemptions; duty to segregate 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 Newspaver Co. v. Police Comm'r, 41 9 Mass. 852, 857 (1995); Flatley, 41 9 Mass. at 5 11 . The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemptions (c) and (f). Reinstein v. Police Cornrn'r of Boston, 378 Mass. 28 1,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, 5 10(a).

Michael B. Halpin, Esq. Page 7 August 3,20 18 Additionally, the Department has not identified the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c) and Exemption (f). 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, 8 lO(b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, the Department withheld responsive records without identifying how many and what type of record(s) it has in its possession that are responsive to Mr. O'Connor's request and that the Department has withheld. I find that the Department has not met its burden of specificity in withholding, in their entirety, the responsive background investigation records under Exemptions (c) and (f). At this time, in order to facilitate a final determination as to the applicability of the exemption claims made by the Department, I request that the Department provide this office an un-redacted copy of a representative sample of the responsive 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 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 (19 8 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. 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 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.

Michael B. Halpin, Esq. Page 8 August 3,201 8 Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of a representative sample of the requested records within 15 business days of the date of this letter. Sincerely, Rebecca S. Murray V Supervisor of Records cc: Brian O'Connor