Laura Crimaldi v. Springfield, City of - Public Schools (SPR 20191140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 20, 2019 SPR19/1140 Anthony I. Wilson, Esq. City of Springfield 36 Court Street Springfield, MA O1 103 Dear Attorney Wilson: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Crimaldi requested "the investigative disposition in internal affairs investigations into [identified] officers." The City denied her request claiming the responsive record is exempt from disclosure pursuant to the first clause of Exemption ( c ). G. L. C. 4, § 7(26)(c). Previous appeals This request was the subject of previous appeals. See SPR18/1149 Determination of the Supervisor of Records (August 15, 2018); SPR18/1340 Determination of the Supervisor of Records (September 19, 2018); SPR18/1685 Determination of the Supervisor of Records (November 28, 2018); SPR19/0051 Determination of the Supervisor of Records (January 18, 2019); SPR19/0575 Determination of the Supervisor of Records (April 3, 2019). I closed my April 3rd determination by ordering the City to provide Ms. Crimaldi 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. Subsequently, the City provided Ms. Crimaldi with another response dated April 25, 2019. 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). 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

Anthony I. Wilson, Esq. SPR19/1140 Page 2 June 20, 2019 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 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. Appeal In my April 3rd determination, I found that based on the City's response, it remained unclear if the "Disposition and Final Disposition sections" are part of an Internal Affairs investigation file, thereby making it exempt from the personnel clause of Exemption ( c) as contemplated in Worcester. I reminded the City that under the first clause of Exemption ( c ), the location of a record is not dispositive of its public status and the nature or character of a record must be evaluated on a case-by-case basis to determine the applicability of the exemption. The City must clarify this matter. In its April 25th response, the City indicates that" ... redaction of the 'Disposition' and 'Final Disposition' sections of the histories because these sections are exempt from disclosure as nu a public record pursuant to ... " Exemption ( c ). The City indicates that " ... an officer's history, is not part of the Internal Investigation Unit's investigatory files and is not used as part of any investigation of complaints made against an officer. The Disposition and Final nu Disposition sections of an officer's history are not factual determinations subject to public nu disclosure. The history and the 'Disposition' and 'Final Disposition' are the appointing authority's disciplinary decision and are not a public record. The nature and character of this document makes it part of 'the core category of personnel information that is useful in making employment decisions regarding the employee."' 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

Anthony I. Wilson, Esq. SPR19/1140 Page 3 June 20, 2019 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). Courts have held that the term "personnel information" is neither rigid nor exact, and that determination should be made on a case by case basis. Wakefield Teachers Ass'n, 431 Mass. at 798. The City is advised that the term "personnel file or information" in Exemption (c) derives its meaning from the nature or character of the document, not from its label or its repository. Worcester Telegram & Gazette Corp. 58 Mass. App. Ct. at 5. Therefore, a custodian's designation of materials as personnel .file or information will not be dispositive to that point. Id. at 5-6. Accordingly, it is unclear how certain information in the City's possession, such as a copy of the complaint to MCAD and an email sent by the complainant to the then Chief of Staff, each constitutes disciplinary documentation within the meaning of Wakefield. See Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 6 (finding that exchanges between the city and the complainant, a copy of the complaint, a notice of a claim, and letters advising of the start of an investigation did not constitute personnel files or information). Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary evaluations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" or other public employees due to the significance of maintaining the transparency of the police department's internal affairs process. Worcester, 58 Mass. App. Ct. at 2. In order to facilitate a determination as to the applicability of Exemption ( c) claim made by the City to withhold the records in their entirety, the City should provide this office with un-

Anthony I. Wilson, Esq. SPR19/l 140 Page 4 June 20, 2019 redacted copies of the responsive records for an in camera inspection without delay. 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. The City may provide this office with a further explanation of its position regarding the applicability of Exemption ( c) to the responsive records. However, please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the responsive records without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Crimaldi