Melissa Hanson v. Worcester, City of - Police Department (SPR 20191657)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen,isor of Records August 28, 2019 SPR19/1657 Joshua Martunas Records Access Officer City of Worcester 9-11 Lincoln Square Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Hayley Johnson, a reporter for MassLive, appealing the response of the City of Worcester Police Department (Department/City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 27, 2019, Ms. Johnson requested a copy of: "Any and all internal affairs documents in the [Department] filed from July 1, 2018 through today's date; and [a]ny and all internal affairs documents regarding [an identified Department officer], aside from the May 20, 2019 document I previously received." Previous appeal This request was the subject of a previous appeal. See SPR19/1500 Determination of the Supervisor of Records (August 1, 2019). In my August 1st determination I ordered the Department to provide Ms. Johnson with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded to this determination on August 15, 2019. I understand that Ms. Johnson appealed the August 15th response and that this office is reviewing that matter in SPR19/l 717. Current appeal Based on Ms. Johnson's petition received on August 15, 2019, it is my understanding that the instant appeal, SPR19/1657, pertains to Ms. Johnson's July 15, 2019 request for "the 62 pages pertaining to the named employee at no cost, as these documents fell within the first two hours of work." This July 15th request appears to be a sub-set of the June 2?1h request referenced above. 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

Joshua Martunas SPR19/1657 Page 2 August 28, 2019 Current appeal In her appeal petition Ms. Johnson indicates "[o]n July 15, 2019, I requested the 62 pages pertaining to the named employee at no cost, as these documents fell within the first two hours of work. The Worcester Police responded to this request on August 5, 2019 with the 62 pages of internal affairs documents pertaining to Officer Miguel Lopez. I am appealing the redacted determinations in internal affairs reports I received. Based on the public records law, I do not believe internal affairs determinations should be redacted." The Department explains the basis of its redactions in responses dated August 5, 2019 and August 8, 2019. These responses cite Exemption (c) of the Public Records Law. 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, § IOA(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, § IO(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. 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

Joshua Martunas SPR19/1657 Page 3 August 28, 2019 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). Internal affairs records 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" for 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. The Appeals Court reasoned that openness in a police internal affair investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the public's trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry's full and fair assessment of a police department's internal investigation of its officer's actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights. Id. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). In its August 5th response the Department asserts that it " ... determined that the first clause of exemption ( c) pertaining to personnel files is applicable to portions of the requested records. See Superior Court order requiring the redaction of the dispositions of internal affairs investigations based on analysis of exemption ( c ), Worcester Telegram & Gazette Corp. v. Gary J. Gemme and City of Worcester, Worcester Superior Court No. 08-2742E, Doc. 12 (Jan. 13, 2010). This analysis recognizes that the investigation disposition falls within a category of disciplinary action, part of 'the core category of personnel information that [is] useful in making

Joshua Martunas SPR19/1657 Page 4 August 28, 2019 employment decisions regarding an employee.' Id. at 9 (citing Wakefield Teachers Assn. v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). The [C]ity has evaluated the nature and character of the responsive records and has determined that these portions of the records constitute personnel records exempt from disclosure, in accordance with the Superior Court's analysis." In its August 3th response the City reiterates the arguments in its August 5th response. You also indicate "[t]he Court, relying on the same Appeals Court decision that you reference (seen. 4), said that, 'It is hereby ordered that the disposition records ... shall not be subject to examination pursuant to this Order and may be redacted.' Id. at 13." You also note "[t]he city evaluated the nature and character of the responsive records and determined that pursuant to the Court's analysis the disposition portions of the records are exempt from disclosure." In her appeal petition Ms. Johnson contends that" ... the disposition portion of an internal affairs complaint does not [] constitute a disposition record, as it is part of the internal affairs document, a public document." She asks that the City provide the internal affairs reports "without the redacted detenninations" and notes that she does not object to other redactions within the records. In camera inspection In order to facilitate a determination as to the applicability of the City's Exemption (c) claims, the City must provide this office with un-redacted copies of the records at issue for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission ofrecords 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. See 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

Joshua Martunas SPR19/1657 Page 5 August 28, 2019 impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the records at issue for in camera inspection without delay. The City may provide this office with an explanation of its position regarding the app b licability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Hayley Johnson