Patricia Mark v. Tisbury, Town of - Town Clerk (SPR 20190542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 27, 2019 SPR19/542 John Grande Town Administrator Town of Tisbury 51 Spring Street, P.O. Box 1239 Vineyard Haven, MA 02568 Dear Mr. Grande: I have received the petition of Patricia Mark appealing the response of the Town of Tisbury (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 19, 2018, Ms. Mark requested: 1. A copy of a complaint filed against [a n identified employee] by [a nother identified employee]; 2. The report by Chief Arthur Parker (ret) of Billingsgate Associates, LLC of Wellfleet, MA that conducted the investigation pertaining to [an identified employee's] complaint, both written and digital recorded; and 3. All email correspondence and documentation between any [Town] employee and Chief Parker pertaining to the complaint by [another identified employee]. Prior appeals The requested records were the subject of prior appeals. See SPRl 8/1990 Determination of the Supervisor of Records (Supervisor) (December 17, 2018); SPR18/2069 Determination of the Supervisor (January 7, 2018); SPR18/2096 Determinations of the Supervisor (January 9, 2019 and February 20, 2019). In my January 9th determination, I found that the Town did not meet its burden of specificity in claiming Exemption (c ) to withhold the complaint, and I ordered the Town to provide this office with an un-redacted copy of the employment complaint for in camera inspection. The Town provided this office with un-redacted copies of the complaints for in camera review. Given the Town's claim that this record may be withheld.under the personnel clause of Exemption ( c ), it is unclear why the requestor cannot have access to the responsive record at issue under G. L. c. 149, § 52C, which provides that an employee is permitted to review and 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

John Grande SPR19/542 Page2 March 27, 2019 receive a copy of his or her personnel records upon submission of a written request to his or her employer. In my February 20th determination, I ordered the Town to provide the requestor with a response consistent with my determination within 10 business days. The Town's response to my February 20th determination The Town's response to my February determination does not explain why the employee complaint was not provided to the employee when the personnel file was provided under G. L. c. 149, § 52C. The office was informed that the former employee received a copy of the personnel file; but, did not receive a copy of the responsive complaint. Instead, the Town asserts, "[a ]fter a careful review of the request and the complaint in question, please be advised that the complaint will be withheld at this time under [E]xemption (f) of the Public Records Law, as detailed herein." The Town also expressed that, "[i]t reserves the right to assert, at its discretion, the application of other exemptions, should the same prove applicable at a future time." 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, § 1 O(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 (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).

John Grande SPR19/542 Page 3 March 27, 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). 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, 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 id. at 289-290. The Town's response to the Supervisor's February 20th determination asserts that the Town may withhold the complaint, in its entirety, under Exemption (f). The response states: "[i]n this case, the responsive records pertain to the [Town Police] Department's internal, administrative investigation. Disclosure of the complaint would inhibit the Department's ability to effectively address administrative issues and keep the Department operating efficiently. In particular, disclosure of the complaint would discourage Department employees from speaking about internal matters requiring investigation, directly contravening a crucial purpose of the investigatory exemption." It is unclear how disclosure of the complaint, even in a redacted format, would "so prejudice the possibility of effective law enforcement" where the complaint pertains to a personnel matter pertaining to a civilian employee, not an investigation of a police officer. During review of the initial and subsequent appeals, this office learned that the subject of the complaint was placed on administrative leave at commencement of the investigation, and then resigned the position with the Department prior to the finality of the investigation. Therefore, it is unclear whether there is any active or on-going investigation pertaining to the personnel issues set-forth in the complaint. Furthermore, the Town was advised in my previous determinations that the complaint should be reviewed, redacted where necessary, and provided to the former employee. However, the Town continues to withhold the entire complaint. As a result, I find that the Town has not met its burden to withhold the complaint, in its entirety, under Exemption (f). Order Accordingly, the Town is ordered to review, redact where necessary and provide the record to Ms. Mark, 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. Failure to comply with this determination may result in referral to the Office of the Attorney General for enforcement.

John Grande SPR19/542 Page4 March 27, 2019 Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Theodore A. Soulnier, Esq. Patricia Mark