Sean Bucci v. Massachusetts State Police (SPR 20182066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 7, 2019 SPR18/2066 Michael Halpin, Esq. Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: 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, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 25, 2018, Mr. Bucci requested "[a]n unredacted (unless legally permissible to redact certain portions) copy of the Massachusetts State Police Internal Affairs 44 page report regarding the Trooper Leigha Gendusa Hiring which recommended her termination and cited 11 violations of the agencies rules and regulations." The Department provided a response on December 14, 2018, which included responsive records in redacted form. The Department claims records were redacted pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's response, Mr. Bucci petitioned this office and this appeal, SPRl 8/2066, 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 ·0 withhold a requested record. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of · the applicability of an exemption). To meet the specificity requirement a custodian site an exemption, but must also state why the exemption applies to the withheld · "ln of the responsive record . ..,e, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Michael Halpin, Esq. SPR18/2066 Page2 January 7, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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 December 14th response In its December 14, 2018 response, the Department indicates that the records were redacted pursuant to the following exemptions under the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Department has cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as applicable to withhold portions of the responsive records. The CORI Act provides in relevant part: "Criminal offender record information", records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section

Michael Halpin, Esq. SPR18/2066 Page 3 January 7, 2019 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. ... G. L. c. 6, § 167 (emphasis added). Under its Exemption (a) claim, the Department states it "redacted mentions of individual's criminal records .... In this instance, your request falls within this exemption since releasing the requested information would violate G.L. c. 6, § 172, the Criminal Offender Record Information (' CORI') statute. General Laws c. 6, § 172 prohibits the dissemination of CORI information which G.L. c. 6, § 167 defines as 'records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release." In light of the updated definition of the CORI Act, it is unclear how the redacted "criminal records" are "information recorded in criminal proceedings that are not dismissed before arraignment." The Department must clarify this matter. 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). First clause ofE xemption (c) - personnel 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

Michael Halpin, Esq. SPR18/2066 Page 4 January 7, 2019 (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). Under the first clause of Exemption (c), the Department states that it" ... redacted portions of the report that detail the steps that are taken during the Department's background investigation. The background check investigation records are part of the employment application and hiring process and are used to make employment decisions regarding a potential employee, and thus are exempt under the personnel records exemption (Exemption (c)). See SPR18/1085." Although public employees have a diminished expectation of privacy in matters relating to their official responsibilities, some information concerning a public employee's employment has been found to be sufficiently personal to be exempt from mandatory disclosure. In Wakefield, the Court found that at a minimum, personnel information includes, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield, 431 Mass. at 798. These, the Court concluded "constitute the core categories of personnel information that are useful in making employment decisions regarding an employee and may be properly withheld from disclosure under Exemption (c)." Whereas this office has found that a background investigation report constitutes employment application information that is useful in evaluating and rendering a decision on whether to hire a potential candidate for a position with the Department, I find the Department acted properly in redacting those portions from the responsive records. See SPR18/1085 Determination of the Supervisor of Records (September 26, 2018). Second clause ofE xemption (c) - 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 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.

Michael Halpin, Esq. SPR18/2066 Page 5 January 7, 2019 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. Under the second clause of Exemption (c), the Department claims that it "redacted references to substance abuse ...." The Department states, "[t]he privacy clause of the exemption ( c) protects 'intimate details of a highly personal nature.' Attorney General v. Assistant Commissioner oft he Real Property Dept. ofB oston, 380 Mass. 623, 626 (1980). Marital status, legitimacy of children, paternity, medical condition, government assistance, substance abuse, family disputes and reputation are examples of the kinds of information the exemption was designed to protect. Id. at 626 n. 2." Based on the Department's response, whereas the Department indicates that it redacted portions related to substance abuse, which the court in PETA found to be an intimate detail of a highly personal nature, I find that the Department has met its burden to redact such portions from the responsive records. See PETA . at 292 n.13. Exemption (I) 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).

Michael Halpin, Esq. SPR18/2066 Page 6 January 7, 2019 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, 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 Comm'r of Boston, 378 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 Reinstein, 378 Mass. at 289-90. Under its Exemption (f) claim, the Department indicates that it" ... redacted witness statements pursuant to the investigative exemption of the public records law. ...W hereas witness information and testimony is essential to efficient and effective law enforcement, the investigative exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Bougas v. Chief ofP olice, 371 Mass. 59, 62 (1976)." The Department contends that" ... disclosure of the names of voluntary witnesses may deter potential witnesses and citizens from providing information to police in future investigations .... The investigative exemption, moreover, allows an investigative agency to withhold from public disclosure any information contained in a witness statement which, if disclosed, would create a grave risk of directly or indirectly identifying the voluntary witness(es). Based on the Department's response it remains unclear how redacting this information would lead to the direct or indirect identification of witnesses. The Department must clarify this matter. Additional information 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, § lO(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b) . In his petition for appeal, Mr. Bucci claims he did not receive "2 missing pages to the IA report ..." Accordingly, the Department must clarify whether it possesses the two additional pages of the IA report. Further, in his petition, Mr. Bucci claims the Department is withholding" ... all the attached/included emails, documents, reports, transcripts, subject letters, further application letter, all character reference evaluations, MSP human resource further application information documents, call in letters, audio and written reports of witness interviews, compact discs, notes synopsis or recordings of telephone conversations with witnesses or those involved, 2 reports written by Sergeant John Foster msp id 2173, all DEA reports written by authored [sic] by

Michael Halpin, Esq. SPR18/2066 Page 7 January 7, 2019 Special agent Gregg Willoughby, synopsis of all reports and interviews, all audio recordings of witnesses, all transcribed interviews, all compact discs from AUSA Glenn Mackinlay, videos, documents identified as leigha's live journal with compact discs, Sgt. Fosters administrative rights form and transcribed interview, all subject notification letters, documents/discovery letters received by the MSP on June 1, 2018 from AUSA Glenn Mackinlay relating to trooper [G]enduso that had been unsealed." Based on a review of Mr. Bucci's original August 251 \ it does not appear that these records were included in the original public records request. If this is a new request, please be advised that a requestor may petition the Supervisor of Records (Supervisor) only after a written request has been made to the records access officer (RAO) of the governmental entity that creates or receives the records. 950 C.M.R. 32.01(1). Additionally, the written request must reasonably describe the public records sought. Id. Whereas the request for the above referenced records was not made directly to the Department's RAO, I decline to opine on that matter. If Mr. Bucci would like to obtain copies of these records, Mr. Bucci is advised that he should make a separate public records request to the Department's RAO. Mr. Bucci may then appeal the substantive nature of the Department's response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion 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