Theodore A. Saulnier v. Tisbury, Town of - Town Clerk (SPR 20190715)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 19, 2019 SPR19/715 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 Theodore A. Saulnier, Esq., on behalf of an identified client, 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, Attorney Saulnier' s identified client 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 by Attorney Saulnier 's client Re: employee complaint(s) The requested records were the subject of prior appeals. See SPR18/1990 Determination of the Supervisor of Records (Supervisor) (December 17, 2018); SPR18/2069 Determinations of the Supervisor (January 7, 2019 and February 20, 2019); and SPR19/542 Determination of the Supervisor (March 27, 2019). In my January J1h 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 inspection: In my February 20th determination and given the Town's claim that this record may be withheld under the personnel clause of Exemption (c), I found that it was unclear why the 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 SPR19/715 Page 2 April 19, 2019 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 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 determination did not discuss why the employee complaint was not provided to the employee when the personnel file was provided under G. L. c. 149, § 52C. This 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 asserted, "[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." Regarding its Exemption (f) claim, the Town further asserted, "[d]isclosure of the complaint would inhibit the [Town Police] 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." As a result, Attorney Saulnier petitioned the Supervisor and SPRl 9/542 was opened. I found that the Town had not met its burden to withhold the complaints, in their entirety, under Exemption (f). On March 27, 2019, I ordered the Town to review, redact where necessary and provide the redacted complaints. Current appeal - In camera review On March 29, 2019, the Town provided Attorney Saulnier and his client with a copy of the redacted employee complaints from January 29, 2018 and February 13, 2018. On April 3, 2019, Attorney Saulnier petitioned this office, stating "I now seek an appeal in this matter as the response is not complete as the document is heavily redacted. There appears to be no applicable exception to the Massachusetts [P]ublic [R]ecords [Law] which the Town can rely in order to hide this information from the public." As a result, appeal SPR19/715 was opened. Exemption (f) 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 SPR19/715 Page 3 April 19, 2019 A custodian of records generally must demonstrate a prejudice to invest1gative 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" 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. An in camera inspection by this office of both the redacted and un-redacted versions of the employment complaints reveals that the Town withheld the identity of the complainant and witnesses who came forward to provide relevant information. The Town also withheld content in the complaints that if disclosed would make it impossible to protect the identity of the complainant and witnesses. In this case, the content of the complaints includes details of particular situations that occurred which if disclosed would identify the complainant and witnesses. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainant and 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). Bougas, 371 Mass. at 62. 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 [or her] career." Id. at 438. Conclusion Upon in camera inspection of the complaints, I find that the Town has met its burden of properly claiming Exemption (f) in redacting the complaints, and that the redaction is justified in order to preserve the complainant's and witnesses' anonymity. See Antell, 52 Mass. App. Ct. at 248. Accordingly, I consider this appeal closed. If Attorney Saulnier and/or his client are not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

John Grande SPR19/715 Page 4 April 19, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Theodore A. Saulnier, Esq. Hillary Conklin, Town Clerk