Debra O'Dowd v. Millis, Town of - Police Department (SPR 20191781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 17, 2019 SPR19/1781 Chief Clu-istopher Soffayer Town of Millis Police Department 1003 Main Street Millis, MA 02054 Dear Chief Soffayer: I have received the petition of Debra O'Dowd appealing the response of the Millis Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. O'Dowd requested "[t]he Internal Affairs file of [an identified patrolman/Court Prosecutor], including but not limited to any and all paperwork related to citizen complaints filed against him, including the one I filed against him in September of this year." On July 18, 2019, Ms. O'Dowd also requested" ... a copy of the 911 call ... regarding [an identified Officer]." Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1531 Detennination of the Supervisor of Records (August 14, 2019). In my August 14th determination, I ordered the Department to provide Ms. O'Dowd with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided a response on August 15, 2019, denying access to responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department's response, Ms. O'Dowd petitioned this office and this appeal, SPR19/1781, 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical fomi 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

Chief Clu-istopher Soffayer SPR19/l 781 Page 2 September 17, 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, § 1O (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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. O'Dowd's purpose in making the request has no bearing on the public status of any existing responsive records. The Department's August 151 response " . In its August 15, 2019 response, the Department indicates that it possesses records responsive to Ms. O'Dowd's request, but it is withholding the records under the following exemptions. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be

Chief Christopher Soffayer SPR19/1781 Page 3 September 17, 2019 subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute provides in relevant part: A person shall have a right against umeasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § lB. The Department cites G. L. c. 214, § lB in support of its position to withhold responsive records. However, this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. C. 214, § lB provides no alternative legal basis to resist inspection of requested materials). Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or infonnation; 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). First clause ofE xemption (c) - personnel and medical 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 infomrntion 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

Chief Clu-istopher Soffayer SPR19/l 781 Page 4 September 17, 2019 first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The comis 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). The first clause also creates a categorical exemption for medical infonnation that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. ofWestpo'rt, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical.information is sufficiently personal to warrant exemption. Globe Newspaper Company, 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). 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, perf01mance assessments, and disciplinary detenninations" included in the public record.s 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 undennine the relationship of tiust and confidence between the police and the citizenry that is essential to law

Chief Clu-istopher Soffayer SPR19/1781 Page 5 September 17, 2019 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., citing Globe Newspaper Co., 419 Mass. at 866. Under the first clause of Exemption (c), citing Worcester, Wakefield, and other decisions, the Department asserts that "[a]s reiterated in [Worcester], documents concerning complaints are exempt from disclosure under the first clause of exemption (c). As such those documents are being withheld in their entirety." Based on the Department's response, I find the Department has neither demonstrated how "documents concerning complaints" are exempt from disclosure under the first clause of Exemption (c) nor established how they constitute one of the core categories of personnel information, such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the personnel clause of Exemption (c). See Worcester, 58 Mass. App. Ct. at 5-6 (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); Wakefield, 431 Mass. at 798; Second clause ofE xemption (c) - privacy 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, 1 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 infonnation 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.

Chief Christopher Soffayer SPR19/1781 Page 6 September 17, 2019 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. Under the second clause of Exemption (c), the Department states that this clause and Exemption (a)," ... protects against the disclosure of information where such disclosure might . violate the privacy rights of an individual." The Department states that after review of the responsive records it is its" ... position that the requested records contain allegations regarding a specifically identified individual. Release of the requested records at this time absent may therefore implicate privacy rights of the individuals mentioned therein, including, for example, innuendo and speculation as to.the subject's reputation and professional competence. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,292 (1979); G.L. c.214, §lB (right against unreasonable invasion of personal privacy)." Consequently, the Department contends that" ... where a resolution of allegations has yet to occur on the very incident at question in the requested reports, the person at issue has a privacy interest in such allegations, and the nature of the allegations may be considered an intimate detail highly personal in nature." The Department references a previous Supervisor of Records determination, SPR84/222, to support its position. The Department indicates that disclosure of the records " ... may implicate the privacy rights of the individuals mentioned therein, including ... innJendo and speculation as to the subject's reputation and professional competence ... where a resolution ... has yet to occur on the very incident at question ... [.]" However, I find the Department has not demonstrated that the requested records contain intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has the Department addressed the availability of such information from other sources. See PETA, 477 Mass. at 292. Exemption (I) Exemption (f) permits the withholding of:, · investigatmy 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)(£).

Chief Christopher Soffayer SPR19/l 781 Page 7 September 17, 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). Redactions 111ay be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein, 378 Mass. at 290 n.18. 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. Under Exemption (f), the Department indicates that it withheld" ... some of the requested investigatory records ... " under this exemption. Based on the Department's response, it is unclear what type(s) ofrecords it is withholding under this exemption. G. L. c. 66, § lO(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, the Department must identify the investigatory records and all other records in its possession that are responsive to this request. Further, it is uncertain how the records pertain to an ongoing investigation. The Department does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Also, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). 911 audio recording With respect to the 911 audio recording, the Department indicates that it relies on all the previously cited exemptions, and explains that "[t]he 911 call ... involved a private matter of one of the Town's employees, and the call was the subject of an internal investigation by the Town." The Department further explains that, "[t]he telephone call involved the medical/mental state of the caller and thus contains details of an extremely personal nature. For these reasons, among others, the record ... is exempt from the Public Records Act." Based on the Departnient's response, to the extent that the recording contains medical information, I find the Department may permissibly withhold such portions from disclosure. However, it is unclear why segregable portions cannot be provided. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are nan-owly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a).

Chief Clu-istopher Soffayer SPR19/1781 Page 8 September 17, 2019 Conclusion Accordingly, the Department is ordered to provide Ms. O'Dowd 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: Debra O'Dowd