Debra O'Dowd v. Millis, Town of - Public Schools (SPR 20191993)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 16, 2019 SPR19/1993 David C. Jenkins, Esq. KP Law 101 Arch Street, 11th Floor Boston, MA 02110 Dear Attorney Jenkins: I have received the petition of Debra O'Dowd appealing the response of the Town of Millis (Town) 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/Cami 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 Appeals . This request was the subject of previous appeals. See SPR 19/1531 Determination of the Supervisor of Records (August 14, 2019); SPR 19/1781 Determination of the Supervisor of Records (September 17, 2019). In my September 17th determination I ordered the Department to provide Ms. 0 'Dowd with a supplemental response to her request for records, consistent with that order and the Public Records Law. The Town's September 30th Response In its September 30th response, the Town stated that it possesses three responsive records, specifically a "discipline gocument" dated October 18, 2018, a memorandum dated January 2, 2019, and a voicemail message. The Town produced a redacted version of the January 2nd memorandum. The Town states that it has "withheld production of the discipline document on the basis of Wakefield Teacher Assoc. v. School Comm." Additionally, the Town states that it has "withheld production of the voicemail message on the basis of the first clause of exemption C." The Town continues, "[i]t is the position of the Town that disclosure of the information may constitute an unwanted invasion of personal privacy." One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

David Jenkins, Esq. SPR19/1993 Page 2 October 16, 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). 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. Current Appeal 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). 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 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 pmiicular 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 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).

David Jenkins, Esq. SPR19/1993 Page 3 October 16, 2019 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). Internal affairs records Please note that the comis have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the "ordinary ev~luations, performance assessments, and disciplinary determinations" included in the public records exemption for "personnel [file] or information" for other public employees dne to the significance of maintaining the transparency of the police depaiiment's internal affairs process. Worcester, 58 Mass. App. Ct. at 2. The Appeals Comi 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., citing Globe Newspaper Co., 419 Mass. at 866. The Town states that it has withheld production of the disciplinary document on the basis of Wakefield Teacher's Assoc .. In Wakefield, the Supreme Judicial Court identified certain categories of documents that fall within the legislative term "personnel [file] or information," including "disciplinary documentation." Wakefield, 431 Mass. at 798. In Worcester, the

David Jenkins, Esq. SPR19/1993 Page 4 October 16, 2019 Massachusetts Appeals Court addressed this issue in the context of Internal Affairs investigations, finding that while the investigatory materials may not be withheld under Exemption ( c ), the conclusory communication to the subject of the investigation may be · withheld. Accordingly, I find that the Town has satisfied its burden to withhold production of the communication from the Police Chief to the officer concerning any disciplinary as a res1Jlt of the internal affairs investigation. 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, there are factors to consider when ass~ssing 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 information 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. 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. In its September 30, 2019 response, the Town states that it has "withheld production of the voicemail message on the basis of the first clause of exemption C of the statute as set out in the prior responses to you by the Police Chief." In the December 18, 2018 response from Chief Christopher Soffayer to Ms. O'Dowd, the Town stated that Exemption (c), " ... protects against the disclosure of information where such disclosure might violate the privacy rights of an individual." The Town stated that after review of the responsive records in 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,

David Jenkins, Esq. SPR19/1993 Page 5 October 16, 2019 292 (1979); G.L. c.214, § lB (right against unreasonable invasion of personal privacy)." The Town concluded 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." Given that this investigation has since concluded, it is unclear whether these considerations are still relevant. In its most recent response, the Town states that "it is the position of the Town that disclosure of the information may constitute an unwanted invasion of personal privacy." However, I find that the Town has not demonstrated that the call recording contains details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. See PETA, 477 Mass. at 292. The Town must also address the availability of such information from other sources. Id. Therefore, I find the Town has not satisfied its burden to withhold the entire call. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Conclusion Accordingly, the Town is ordered to provide Ms. O'Dowd with a response to her 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