Hector E. Pineiro v. Worcester County Jail and House of Correction (SPR 20181237)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 29,201 8 SPR1811237 Andrew Abdella, Esq. General Counsel Worcester County Sheriffs Office 5 Paul X. Tivnan Drive West Boylston, MA 0 158 3 Dear Attorney Abdella: I have received the petition of Hector E. Pineiro, Esq. appealing the response of the Worcester County Sheriff Office's (Office) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Pineiro requested 22 categories of records -- related to an identified individual. The Office provided certain records but withheld others under Exemptions (c) and (n) of the Public Records Law. G. L. c. 4, $ 7(26)(c), (f). Purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Pineiro's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Pineiro may wish to consider another means of seeking to obtain any existing responsive records. 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, $ 1O A(d); 950 C.M.R. 32.03(4). "Public One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Andrew Abdella, Esq. Page 2 August 29,20 18 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). Current appeal In a response dated March 1,2018 , the Office provided certain responsive records but withheld "[alny disciplinary measures undertaken by the Worcester County Sheriff against the officers that came in contact with Mr. Skinder on 1/13/2018" (request 19) and "[tlhe entire disciplinary records of those officers that came in contact with Mr. Skinder on 1/13/2018" (request 20) under Exemption (c). The Office also withheld other categories of records, including surveillance videos, under Exemption (n). In a July 30,2018 response the Office further indicates it is "unable to release the video at this time for the subsection (n) exemption in the public records statute." It appears Attorney Pineiro only objects to the withholding of these records. Exemption (c) 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 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 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 Cow. v. Chief of Police of Worcester, 58 Mass. App. Ct. l,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 records that may be redacted under the first clause. See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11 -0 11 8 4-A (June 14,201 3).

Andrew Abdella, Esq. Page 3 August 29,20 18 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, 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 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: (I) 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. People for the Ethical Treatment of Animals (PETA) v. Dep't of Aaric. Res., 477 Mass. 280,292 (20 17).

Andrew Abdella, Esq. Page 4 August 29,2018 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. 41 5,427 (1 988) (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. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public recordq under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines "the factual and contextual support for the Id. proposition that disclosure of the record is 'likely to jeopardize public safety."' at 289-90. The PETA decision further provides that "[blecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's Id. determination given the context of the particular case." Burden of Specificity 0 Although the Office provides the statutory language for these exemptions, I find it has

Andrew Abdella, Esq. Page 5 August 29,2018 not met its burden to withhold responsive records in their entirety under Exemptions (c) and (n). See G. L. c. 66, 9 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.. ."); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289- 90 (19 79) (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, § lO(a). Conclusion Given that the Office did not meet its burden to explain how an exemption applies to the records, the Office is ordered to provide Attorney Pineiro with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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 V Supervisor of Records cc: Hector E. Pineiro, Esq.