Brian O'Connor v. Massachusetts State Police (SPR 20181507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 26, 2018 SPRlS/1507 Jenniffer P. Migliaccio, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Migliaccio: I have received the petition of Brian O'Connor appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. O'Connor requested "any and all photos in the possession of the Massachusetts State Police of [ an identified employee]." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1172 Determination of the Supervisor of Records (August 21, 2018). I closed SPRl 8/1172 by ordering the Department to provide Mr. O'Connor with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Department provided a response on October 9, 2018. Unsatisfied with the Department's response, Mr. O'Connor petitioned this office and this appeal, SPR18/1507, 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, § 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. 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 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

Jenniffer P. Migliaccio, Esq. SPR18/1507 Page 2 October 26, 2018 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, § 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. No duty to create records In its October 9th response, the Department indicates that "[i]t is [the Department's] understanding that [Mr. O'Connor's] request was not limited to duty photo(s), but also any photos that that the Department may maintain. Please note, the Department did conduct a good faith search for photographs and searched photographs taken by or posted by Media relations. However, [the Department was] unable to locate any photographs." In Mr. O'Connor's petition for appeal he asserts that "a simple google search for [the identified employee] including white pages that all her information including some photos ... in the media story are available." Mr. O'Connor is advised that under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). Exemption (b) The Department indicates it is withholding "duty photographs" of the identified employee pursuant to Exemption (b ). Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, Provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S.

Jenniffer P. Migliaccio, Esq. SPR18/1507 Page 3 October 26, 2018 3 52, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). The Department indicates that "[t]he disclosure of duty photographs could prove detrimental to the safety and security of officers. Furthermore, non-disclosure of these photographs is necessary for the proper performance of police functions. Disclosure of such records could jeopardize undercover and/or plain clothes operations, and risk officer safety. Accordingly, exemption (b) authorizes the Department to withhold this information." However, the Department has not met its burden to establish that these duty photos are· solely related to internal personnel rules and practices of the government unit; for example, they are not policies or procedures that pertain to personnel rules or practices of the Department. Therefore, the Department has not met its burden to withhold responsive duty photos under Exemption (b ). Exemption (c) In its October 9th response, the Department indicates it is withholding photo identification card(s) as personnel information 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 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

Jenniffer P. Migliaccio, Esq. SPR18/1507 Page 4 October 26, 2018 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 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 (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). The Department indicates that "[t]he Department photographs are taken by the Photo ID Unit located at General Headquarters. The Photo ID Unit creates and provides each Department member, sworn and civilian, with an identification card featuring his or her photo. The nature of the photo ID is limited in purpose in that it promotes safety and security for Department employees while creating a unique record of an individual for the Department's own documentation purposes. Based on the foregoing rationale, photo ID's of Department employees are personnel information for purposes of exemption (c)." The Department has not demonstrated how the photo ID is useful in making employment decisions, nor has it specifically explained whether the record or information falls within one of the core categories of personnel file information described in Wakefield. See Wakefield, 431 Mass. at 798. Given that the Department has not demonstrated that the record is one of the core categories of personnel information described in Wakefield, and that it is information useful in making employment decisions, I find that the Town has not met its burden to withhold the requested information as personnel information under the first clause of Exemption ( c) of the Public Records Law. See Globe Newspaper Co., 388 Mass. at 438. Exemption (n) In its October 9th response, the Department indicates it is withholding "duty photographs" pursuant to Exemption (n).

Jenniffer P. Migliaccio, Esq. SPR18/1507 Page 5 October 26, 2018 Exemption (n) permits the withholding of: 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 records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). 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."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that 11 [b ]ecause 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 determination given the context of the particular case. 11 Id. In Department's response, it indicates that the Department, "in its reasonable LJudgment], believes the disclosure of personnel photographs is likely to jeopardize the safety of persons pursuant to M.G.L. c. 4, §7, cl. (26) (n)." It "posits that exemption (n) is not limited to only 'blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments.' Its response notes that "[t]he Department believes that the teaching of PETA is that one must look past the title of a document, and instead consider how it is similar or dissimilar to the types of documents listed in the statute." First prong Although the duty photos may be "other records relating to security or safety of persons," PETA requires an inquiry into "whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage"' to determine the applicability of Exemption (n). Id. With respect to disclosure of these particular records, the Department argues "[r]eleasing copies of duty photographs of our officers could jeopardize the 'security or safety' of those officers;

Jenniffer P. Migliaccio, Esq. SPR18/1507 Page 6 October 26, 2018 especially, if those officers are ever in the position of working in an undercover or even plainclothes capacities. Release of such photographs could also hinder the Department's investigative functions and missions by jeopardizing the security and safety of its officers." Despite the Department's assertion that there is the possibility that these officers could work in undercover or plainclothes capacities, I find the responsive records do not strongly resemble the records enumerated in Exemption (n), particularly because the Department has not demonstrated the likelihood that a terrorist would these duty photos "useful to maximize damage." Id. Second prong With respect to the second prong, the Department claims "Exemption (n) mandates that the Supervisor give such deference to the custodian's judgment that releasing duty photographs could likely jeopardize officer safety or security. The exemption does not require a finding that individual safety will, in fact, be jeopardized, only that it is, in the reasonable judgment of the Department, likely to jeopardize the safety of individuals." The PETA decision addressed the issue of deference to the records custodian. The decision provides the following: In this regard, it is well to note that exemption (n) is unique among the public records exemptions in its inclusion of the phrase "reasonable judgment of the record custodian." See generally G. L. c 4, § 7, Twenty-sixth. Such language neither requires or even invites any heightened level of deference to the records custodian's initial determination whether to disclose or withhold a record. Id. at 291. In light of the above, as well as the statutory language in Exemption (n) that provides that the reasonable judgment of the record custodian is subject to review by the supervisor of public records, I will analyze whether the Department has provided "sufficient factual heft" to conclude that a reasonable person would agree with the Department's determination given the context of this particular case. Id. at 289-90. Since I found that the responsive records do not strongly resemble the records enumerated in Exemption (n), the Department has a high burden to demonstrate that it exercised reasonable judgment in determining that disclosure of the record is likely to jeopardize public safety. Id. at 290-91 (indicating that "as the resemblance between the record sought and the listed examples in exemption (n) decreases, the custodian's burden for demonstrating 'reasonable judgment' increases. Thus, when the requested record bears little or no resemblance to the listed examples, the custodian's burden for demonstrating that it exercised 'reasonable judgment' in determining that disclosure of the record is 'likely to jeopardize public safety' will be at its highest.").

Jenniffer P. Migliaccio, Esq. SPRI8/1507 Page 7 October 26, 2018 Although the Department argues that releasing the duty photos could impact potential undercover or plainclothes officers or investigative functions, it has not provided examples of how the release of duty photos of the identified employee is likely to jeopardize public safety. As such, I find the Department has not met its burden to show that it exercised reasonable judgment in determining that disclosure of these records is likely to jeopardize public safety as required by Exemption (n). ·I d. at 290-91. Therefore, the Department has not met its burden to withhold responsive duty photos under Exemption (n). Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to provide Mr. O'Connor 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, ~ u r r ~ Supervisor of Records cc: Brian O'Connor