Sean Bucci v. Massachusetts State Police (SPR 20181257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervrsor ofRecords September 4,201 8 SPR18/1257 Jenniffer Migliaccio, Esq. Office of the Chief Legal Counsel Department of State Police 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 ArrestISearcW 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 2015 (. . .). 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 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

Jennifer Migliaccio, Esq. Page 2 September 4, 20 18 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." Previous appeal This request was the subject of previous appeals. SPRl8175 1 Determination of the Supervisor of Records (June 6,2018 ) and SPR18/1026 Determination of the Supervisor of Records (July 25, 2018) (June 6tha nd July 25th determinations). I closed my July 2sth determination by ordering the Department to review the responsive records, redact where necessary, and provide Mr. Bucci with the requested records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the July 25t" determination, the Department provided a supplemental response on August 16,201 8, denying access to certain records under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, 5 7(26)(c), (f). Unsatisfied with the Department's response, Mr. Bucci petitioned this office and this appeal, SPR1811257, 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 lO(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. Tlze Departntent's August 16'" response In its August 16, 20 18 response, the Department provided additional information regarding the applicability of Exemptions (c) and (f) to certain records and indicates that this

Jennifer Migliaccio, Esq. Page 3 September 4,20 18 response incorporates by reference its May 11,2018 and July 2,201 8 responses. The Department further indicates that it possesses two background check investigations and provides a blank employment application form. Exemption (c) The Department claims it withheld the identified Trooper's employment application and background checks from disclosure under the first clause of 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 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 & 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 records that may be redacted under the first clause. & Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11 -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. 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. 151 , 158 (1 979). 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 posits that the two background checks were conducted in relation to the identified Trooper's employment application to become a Dispatcher and a Trooper in 2008 and 2013, respectively. The Department claims the

Jennifer Migliaccio, Esq. Page 4 September 4,20 18 background checks and the job applications are exempt under the first clause of Exemption (c). Citing to Wakefield, the Department claims that "[tlhe case law identifies that employment applications are considered personnel records and are exempt from disclosure. Furthermore, the background checks are a part of the applicationlhiring process and are used to make employment decisions as well as regarding a potential employee. . . . The background investigations and employment applications . . . are unequivocally personnel records and are the exact type of records that this exemption is intended to protect. . . . " 0 Exemption The Department also claims it withheld the identified Trooper's background checks from disclosure under 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. Bouaas 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 Cornrn'r of Boston, 378 Mass. 28 1,290 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." See Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department indicates that "background investigations maintained by the Department contain personallprivate information and other data gleaned through a confidential investigative process and are also exempt. . . ." The Department explains 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 will be made a public record. Accordingly, the responsive background investigations are exempt from public disclosure. . . ."

Jennifer Migliaccio, Esq. Page 5 September 4, 20 18 Burden of speczjicity 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, § 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. With respect to Exemption (c), the Wakefield Court found that at a minimum, "the core categories of personnel information" includes, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield, 43 1 Mass. at 798. The Court concluded that these core categories of personnel information are useful in making employment decisions Id. regarding an employee and may be properly withheld from disclosure under Exemption (c). at 798-99. Consequently, I find the Department may permissibly withhold the identified Trooper's employment application under the first clause of Exemption (c). Additionally, whereas the two background checks were conducted during the applicationhiring process and were useful in making employment decisions regarding the potential employee, I find the Department may permissibly withhold the background checks under the first clause of Exemption (c). With respect to Exemption (f), whereas I find the Department may permissibly withhold the identified Trooper's background checks under Exemption (c), I decline to opine of the Department's Exemption (f) claim in support of non-disclosure. Additional records Although the Department has indicated that it possesses the identified Trooper's employment application and two background checks, it remains unclear if the Department has additional records in its possession, custody or control. Mr. Bucci also requested the identified Trooper's "EmploymentJile and hiringflle to include all letters of recommendation and oral recommendations, resume, . . . vetting records, . . . essays, . . . Interviews, 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 . . . All oral or written letters of reference on [the identified Trooper's] behalf and any interview of people who gave oral or written references. . . ." (Emphasis added). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 5 10(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. G. L,c . 66, 5 1O (b)(iii). As such, the Department must clarify if it possesses additional records responsive to Mr. Bucci's request.

Jennifer Migliaccio, Esq. Page 6 September 4,20 18 Compact disc record In its July 2, 201 8 response, the Department indicated that it withheld the compact disc containing the CJIS data and queries from the identified Trooper's user's account under the Criminal Offender Record Information (CORI) Act and the Federal Driver Privacy Protection Act (DPPA), as they operate through Exemption (a) of the Public Records Law. As such, in my July 25th determination I indicated that "it remains unclear how the CORI Act and DPPA permit the Department to withhold the records on the compact disc in their entirety. . . ." July 25th determination. Based on the Department's August 1 ~res'po~nse , it is unclear if the Department continues to claim Exemption (a) to withhold the compact disc. The Department must clarify this matter. In camera inspection of records In my June 6th determination, I ordered the Department to provide this office an un- redacted copy of the responsive "IA 201 6-0009" report and "violation committed and results of violations reports" for in canzera inspection. June 6thd etermination. In my July 25th determination, I again ordered the Department to provide the records for in camera review without delay. See July 25th determination. In its August 16 '" response, the Department claims it "is coordinating the delivery of documents for the in camera inspection of #A201 6-0009." Accordingly, the Department is again ordered to provide this office with an un-redacted copy of the "IA 201 6-0009" report and "violation committed and results of violations reports" for in camera inspection without delay. 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. Order Accordingly, the Department is ordered to provide Mr. Bucci with a response to the request, 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