Laura Crimaldi v. Worcester, City of - Police Department (SPR 20181379)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 19, 2018 SPRlS/1379 Lieutenant Michael Hanlon Worcester Police Department 9-11 Lincoln Square Worcester, MA 01608 Dear Lt.Han on: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the Worcester Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Crimaldi requested the following records: • Total number of complaints received by year (ex. Total complaints for 2012, 2013, 2014, 2015, 2016, 2017, and YTD); • Breakdown of the source of the complaint (citizen or internal) by year (ex. number of citizen complaints for 2012, number of internal complaints for 2012 I number of citizen complaints for 2013, number of internal complaints of 2013; • Disposition of complaints by year ( ex. sustained, not sustained, pending); • Any other statistics Worcester police have compiled about investigations into its own officers since Jan. 1, 2012. The Department responded on August 29, 2018 by providing 5 pages of responsive records with portions redacted under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § 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, § 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Lieutenant Michael Hanlon SPR18/1379 Page 2 September 19, 2018 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (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. Appeal In its August 29th response the Department indicates "[s]ome of these attached documents contained the final conclusion reached by BOPS as a result of their investigation." You cite Exemption (c) and assert "[u]nder the Massachusetts Public Records Law, the final conclusions of internal affairs investigations and any discipline that resulted from an investigation is not subject to release as a public record. Therefore, I have redacted the final determination of the investigation from the attached documents." In her appeal petition Ms. Crimaldi notes she received a log of the Department's Bureau oftTofessmmrt-S'nrmla1cts-investtgat1ons~owever, she indicates the Department "redacted the disposition - whether the complaint was sustained, not sustained, unfounded, etc." She asserts "[t]his information was improperly redacted as the Appeals Court has ruled the findings in an internal affairs investigation is public. (See Worcester Telegram v Chief of Police of Worcester - 2003)." 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 G. L. c. 4, § 7 (26)(c). 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 creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. 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., 431 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. 11-01184-A (June 14, 2013).

Lieutenant Michael Hanlon SPR18/1379 Page 3 September 19, 2018 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 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 (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 ifrelating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). 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 "per sonnerf:firetorinformation=-orotherpubiic-emptoyees due tuih:e-sig:t1ificance of mamtammg 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 citizemy 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 citizemy' s full and fair assessment of a police department's internal investigation of its officer's actions promotes the core v~lue 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). It is unclear how the disposition information within the responsive records is exempt from disclosure, particularly in light of the Worcester decision that found that materials in an internal affairs investigation are "different in kind from the ordinary evaluations, performance assessments and disciplinary determinations encompassed in the public records exemption for 'personnel [file] or information."' See Worcester, 58 Mass. App. Ct. at 2-3. Further, it is unclear how this information falls within Exemption ( c) since it does not appear that there are individual

Lieutenant Michael Hanlon SPRlS/1379 Page4 September 19, 2018 names associated with the records provided by the Department. As a result, I find the Department has not met its burden of demonstrating how the redacted portions of the records are exempt from disclosure under Exemption (c). See G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the Department is ordered to provide Ms. Crimaldi 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, -----~IJJJucA~. ~~- Rebecca S. Murray Supervisor of Records cc: Laura Crimaldi