Roger W. Steward v. Gardner, City of- Police Department (SPR 20181467)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 17, 2018 SPRlS/1467 Neil Erikson Chief of Police City of Gardner Police Department 200 Main Street Gardner, MA 01440 Dear Chief Erikson: I have received the petition of Roger W. Steward appealing the response of the City of Gardner Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Steward requested a copy of: 1. All Internal Affairs investigation reports regarding [a n identified person], 01-01-2005 to 01-01-2012; 2. All [D]epartment issued awards given to [an identified person], 01-01-2005 to 01-01- 2012; 3. All records, as defined by G. L. c. 4, § 7(26) regarding [an identified person's] termination of employment with the City of Gardner/Gardner Police; 4. All allegations of official misconduct made against [an identified person], 01-01-2005 to 01-01-2012. On July 19, 2018, the Department provided Mr. Steward with a copy of an Internal Affairs report dated May 21, 2009. The Department denied Mr. Steward's request for another Internal Affairs report pursuant to G. L. c. 41, § 97D, and his requests for any Department issued awards, records of termination of employment and any allegations of official misconduct pertaining to the identified person because the Department claims the records are restricted as personnel records. As a result of the Department's July 19th response, Mr. Steward petitioned the Supervisor of Records (Supervisor) and this appeal was opened. 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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 Neil Erickson SPR18/1467 Page 2 October 17, 2018 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). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. G. LC. 41, § 97D In your July 19th response, the Department contends that an entire Internal Affairs report may be withheld under G. L. c. 41, § 97D, as it operates through Exemption (a). G. L. c. 41, § 97D states: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality .... G. L. C. 41, § 97D.

Chief Neil Erickson SPR18/1467 Page 3 October 17, 2018 To the extent the Internal Affairs investigation records contain applicable police reports or communications between any victims and police officers, they may be redacted in accordance with G. L. c. 41, § 97D. However, the Town has not demonstrated that the Internal Affairs investigation report may be withheld in its entirety pursuant to G. L. c. 41, § 97D. First clause of Exemption (c) The Department contends in its July 19th response that any records responsive to Mr. Steward's request for any Department awards given to the identified person; any records regarding the termination of the identified person; and any records of allegations of misconduct against the identified person have been withheld under the first clause of Exemption (c ) as personnel information. 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). 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 ofrecords 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 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).

Chief Neil Erickson SPR18/1467 Page4 October 17, 2018 I find that the Department has not demonstrated that all the records responsive to Mr. Steward's Requests 2, 3 and 4 constitute core categories ofrecords useful in making employment decisions, such as disciplinary, demotion or termination information pertaining to the identified employee. See Worcester, 58 Mass. App. Ct. at 5. Therefore, the Department has not met its burden of specificity in claiming that the records may be withheld as personnel information under the first clause of Exemption ( c ). Burden of specificity; duty to segregate The Department denied Mr. Steward's request without providing the specificity required to support its exemption claims under the Public Records Law to withhold responsive records. 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 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, § lO(a). Conclusion Given that the Department has not met its burden to withhold the responsive Internal Affairs investigation report under Exemption (a) and G. L. c. 41, § 97D, and other responsive records under Exemption ( c ), in their entirety, the Department is ordered to review the records, redact where necessary and provide Mr. Steward with the redacted records 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 Supervisor of Records cc: Roger W. Steward Alan Agnelli, Clerk & RAO