Kiera Blessing v. Haverhill, City of - City Clerk (SPR 20190344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 27, 2019 SPR19/0344 Michele E. Randazzo, Esq. KP Law, P.C. 101 Arch Street Boston, MA 02110 Dear Attorney Randazzo I have received the petition of Kiera Blessing of the Eagle Tribune appealing the response of the City of Haverhill (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mike LaBella of the Eagle Tribune requested "a copy of a Haverhill Police investigative report ( estimated 90-190 pages) in regards to Haverhill Highway Superintendent Brain Zaniboni." Previous appeal This request was the subject a previous appeal. See SPR18/2095 Determination of the Supervisor of Records (February 8, 2019; January 10, 2019). In my February 3th determination, I closed the appeal upon learning that the City provided Mr. LaBella with another response to his request including redacted responsive records. Unsatisfied with the City's response, Ms. Blessing petitioned this office and this appeal, SPRl 9/0344, 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, § 1O A( 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); 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

Michele Randazzo, Esq. SPR19/0344 Page 2 February 27, 2019 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal 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). 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).

Michele Randazzo, Esq. SPR19/0344 Page 3 February 27, 2019 Under the first clause of Exemption ( c) , the City explains that "the investigation report refers to both criminal and non-criminal allegations. Certain individuals have been criminally charged; those criminal prosecutions are a matter of public record, and the contents of the report related directly to those criminal charges and prosecutions have not been redacted. However, the majority of the report addresses a number of non-criminal, personnel-related matters, information about which would be the type of information useful in making employment decisions." The City lists the page numbers for those that have been redacted pursuant to the first clause. Despite the City's response it remains unclear which redacted portions the City is claiming constitute personnel information. Under the second clause of Exemption ( c) , the City indicates that it "has engaged in a specific, case-by-case analysis of information redacted from the following pages, and has determined that redactions made on the below-listed pages meets the criteria for redaction under the second clause to Exemption (c), in light of the PETA factors." The City lists the page numbers for those that have been redacted pursuant to the second clause. 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. 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, 477 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. Despite the City's response, it remains unclear what privacy interest or interests are at stake. Although, the City states it has done a PETA analysis, it has not provided enough information to establish which redacted portions constitute a type of personal information which

Michele Randazzo, Esq. SPR19/0344 Page4 February 27, 2019 would cause embarrassment to an individual of normal sensibilities if released, would constitute an intimate detail of a highly personal nature, and is not available from other sources. See PETA, 477 Mass. 292. Additionally, the City has not established that any invasion of privacy is not substantially outweighed by the public interest in obtaining the redacted information in light of the diminished expectation of privacy afforded to public employees. See id. at 291-292. Exemption (d ) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In support of its redactions under Exemption (d), the City indicates that "[t]he nature and extent of administrative action to be taken in light of the information contained in the requested report, is still under consideration by the City. It is reasonably anticipated that public disclosure of certain portions of the report at this time will, in fact, negatively influence the City's ongoing deliberative process in considering the report's contents and any City response thereto." The City then lists the page numbers for those that have been redacted pursuant to Exemption (d ). Despite the City's indication that release of the redacted information withheld under Exemption (d) would "negatively influence the City's ongoing deliberative process," the City has not established that the withheld information constitutes recommendations on legal or policy matters and is not purely factual information. See Babets, 403 Mass. at 237 n.8; Envtl., 410 U.S. at 89. Exemption (j) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law

Michele Randazzo, Esq. SPR19/0344 Page 5 February 27, 2019 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, 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. The City indicates that "the report contains details about the efforts made by police to investigate certain criminal allegations, including undercover activities and identification of other specific actions taken by police to investigate these allegations. Release of this information, revealing to the public the manner in which and the steps whereby the police investigated certain criminal allegations, could reasonably be expected to so prejudice the City's ability to effectively investigate criminal activity in the future such that release is not in the public interest." The City lists the page numbers for those that have been redacted pursuant to Exemption (f) and specifically "confidential investigative techniques, procedures, and/or sources of information." Based on the City's response, to the extent that the records contain confidential investigative techniques that would detrimental to law enforcement activities if released, those portions of the responsive records may be properly withheld. See. Bougas, 371 Mass at 62. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438.

Michele Randazzo, Esq. SPR19/0344 Page 6 February 27, 2019 The City indicates that "[p] ersons interviewed as part of this investigation were not compelled to do so, and indeed, one individual declined to be interviewed. Separate police interview of Steven Allen, Erik Frasca, and Kevin Moriarty, in the context of their arrests and subsequent criminal prosecutions, are reflected in relevant police reports (Attachment 9 to the investigative report). These are distinct rom the interviews otherwise conducted and reflected in the investigative report." Based on the City's response, to the extent that the records contain voluntary witness statements and cannot be redacted in a way that protects the witnesses from direct or indirect identification, those portions of the responsive records may properly be withheld. See Reinstein, 378 Mass. at 290 n.18; Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. at 438. Order Accordingly, the City is ordered to provide Ms. Blessing 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: Kiera Blessing Linda Koutoulas