Kimberly Kalunian v. Seekonk, Town of - Police Department (SPR 20181437)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 11, 2018 SPRlS/1437 Frank John Chief of Police Town of Seekonk Police Department 500 Taunton Avenue Seekonk, MA 02771 Dear Chief John: I have received the petition of Kimberly Kalunian of WP RI 12 appealing the response of the Town of Seekonk 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. Kalunian requested: 1. Emails to/from Chief Mace regarding [a n identified police officer] from January 1, 2018-present; 2. Time cards for [the identified police officer] for detail work at the Arcade Avenue construction project; 3. [The identified police officer's] resignation letter; 4. Any and all records of disciplinary action taken against [the identified police officer]; and 5. Any and all internal affairs reports on [the identified police officer]. In a July 20, 2018 response, the Department provided Ms. Kalunian with a response and a fee estimate to produce non-privileged/non-exempt emails, time cards and Internal Affairs reports. The Department indicated that the resignation letter and any records of disciplinary action taken against the identified police officer would be withheld under Exemption ( c) as personnel information. On August 21, 2018, the Department provided Ms. Kalunian with copies of certain emails; the time cards; and Internal Affairs reports from 2012 and 2014 regarding the identified police officer. The. Department provided Ms. Kalunian with a privilege log explaining the emails that the Department withheld under the attorney-client privilege, and the 2018 Internal Affairs report that is withheld under Exemptions (c) and (f) of the Public Records Law. 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

Chief Frank John SPR18/1437 Page2 October 11, 2018 Ms. Kalunian petitioned the Supervisor of Records (Supervisor) on September 26, 2018, pertaining only to the Department's withholding of the 2018 Internal Affairs report due to "umesolved allegations" under Exemptions ( c) and (f). Ms. Kalunian asserts, "I contend that the allegations in the 2018 report are resolved, at least in terms of the [Department's] jurisdiction, because [the identified police officer] resigned from the [D]epartment." As a result of Ms. Kalunian's petition, this appeal was opened regarding the 2018 Internal Affairs report. Requirements for filing an appeal In her September 26th petition to the Supervisor seeking an appeal of the Department's denial, Ms. Kalunian did not provide the Supervisor with a copy of her written request to the Department. Nor, did Ms. Kalunian provide the Department with a copy of her September 26th petition. After contact by a Public Records Division staff attorney, Ms. Kalunian provided a copy of her original request to this office. A member of the Public Records Division staff provided a copy of the appeal file, including the petition, to the Department and its Legal Counsel, KP Law, P.C. Ms. Kalunian is reminded that, under the requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requestor must provide 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(l)(g)(l). In addition, in petitioning the Supervisor, the requestor shall provide a copy of such petition to the records access officer associated with such petition. See 950 C.M.R. 32.08(1)(h). 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, § 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 ... "); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption).

Chief Frank John SPR18/1437 Page 3 October 11, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 20, 2018 and August 21, 2018 responses In its July 20th response regarding the 2018 Internal Affairs report, the Department asserted that the report is a record of disciplinary action and has been withheld under the first clause of Exemption ( c) as personnel information. In its August 21st response, the Department indicates that the 2018 Internal Affairs report contains "unresolved allegations;" therefore, the report has been withheld under the second clause of Exemption ( c) and Exemption (f). Exemption ( c) Exemption (c) applies to: 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). First clause of (c) -personnel 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). 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

Chief Frank John SPR18/1437 Page 4 October 11, 2018 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). Internal Affairs investigation record(s) Exemption (c) Please note that the courts have contrasted the public status of disciplinary investigation materials oflaw 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). In light of the fact that the investigation was an Internal Affairs investigation involving a former police officer, not an ordinary personnel investigation of a civilian employee, I find that the Department has not met its burden of demonstrating the first clause of Exemption ( c) allows the Department to withhold the Internal Affairs investigation report in its entirety. Second clause of (c) -privacy The Department has also asserted that release of the 2018 Internal Affairs report pertaining to a former police officer, even in a redacted format, would implicate the former police officer's right to 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

Chief Frank John SPR18/1437 Page 5 October 11, 2018 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: (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 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 disputes and reputation. Id. 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 , 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department's August 21st response states, "[i]n this case, after careful review, an internal affairs report from 2018 involving [the identified police officer], a specifically named individual, contains unresolved allegations initiated in 2018, and as such, the release of the requested document would implicate privacy rights of said individual. Release of allegations prior to disposition can result in innuendo and speculation as to the subject's reputation and professional competence." Citing Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 292 (1979). In a telephone discussion with a Public Records Division staff attorney on October 5, 2018, the Department's Legal Counsel, Janelle Austin, Esq. of KP Law, P.C. explained that the Internal Affairs investigation in 2018 was never concluded; therefore, the allegations raised were not fully resolved in the investigation. The Department posits that it is the unresolved allegations that led to the investigation that the Department believes could be damaging to the identified former employee's reputation in the community. The Department's August 21st response asserts, "[s]uch speculation can adversely affect the subject's standing in the community as well as the subject's ability to perform the subject's current job or obtain future employment." Citing, id. The Department has not demonstrated that even with redaction of the report, whether disclosure would result in personal embarrassment to an individual of normal sensibilities; whether even a redacted report would contain intimate details of a highly personal nature such as

Chief Frank John SPR18/1437 Page 6 October 11, 2018 damage to reputation, and whether the same information is available from other sources. See PETA, 4 77 Mass. at 292. It is also unclear whether "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 , 4 77 Mass. at 291. I find that the Department has not met its burden of demonstrating that the entire 2018 Internal Affairs investigation report may be withheld under the second clause of Exemption (c ). Exemption (I) The Department's August 21st response also indicates that Exemption (f) applies to withhold confidential investigative techniques, and identifying information of voluntary witnesses and complainants contained in the 2018 Internal Affairs investigation report. 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 G. L. C. 4, § 7 (26)(:f). 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 Lexington, 3 71 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 Comm'r of Boston, 3 78 Mass. 281, 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 id. at 289-290. The Department may withhold identifying information of any voluntary witnesses and complainants pursuant to Exemption (f). However, it is unclear what investigative techniques the Department is withholding that would be prejudicial to future law enforcement efforts. See Bougas, 371 Mass. at 62. I find that the Department has not met its burden of demonstrating the Internal Affairs investigation report may be withheld in its entirety pursuant to Exemption (f). Burden of specificity; 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, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did

Chief Frank John SPR18/1437 Page 7 October 11, 2018 not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § IO(a). Conclusion Accordingly, the Department is ordered to provide Ms. Kalunian with a response 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. Ms. Kalunian may appeal the substantive nature of the supplemental response within 90 calendar days. Sincerely, ~UIT~ Supervisor of Records cc: Kimberly Kalunian Janelle M. Austin, Esq., KP Law, P.C.