Stephanie Barry v. Springfield, City of - Police Department (SPR 20192049)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 22, 2019 SPR19/2049

Andrea L. Stone

Public Records Coordinator

City of Springfield

Office of the City Clerk

36 Court Street

Springfield, MA 01103

Dear Ms. Stone:

I have received the petition of Stephanie Barry of The Republican appealing the response of the Springfield Police Department (Department) to a request for public records. G. L. c. 66, § ~10A; see also 50 C.M.R. 32.08(1). Specifically, Ms. Barry requested “the most updated IIU file for Officer Angel Berrios, including reports and disciplinary actions, plus any other related materials.”

The Department’s Response

The Department responded on September 4, 2019, producing a redacted IU history for the requested officer. Unsatisfied with these redactions, Ms. Barry petitioned this office and this appeal SPR 19/2049, was opened as a result. . Current Appeal

In its September 4"" response, the Department explained that it redacted the “Disposition” and “Final Disposition” sections of the history pursuant to the first clause of Exemption (c), and redacted the names of civilians pursuant to the second clause of Exemption (c). 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 ,

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 ,

Andrea L. Stone SPR19/2049 Page 2 October 22, 2019

G. L. c. 4, § 7(26)(c). First clause of Exemption (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. vy. 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). Asa 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 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 affairs 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

Andrea L. Stone SPR19/2049 Page 3 October 22, 2019

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 Appeals Court concluded that “Ti]t would be odd, indeed, to shield from the light of public scrutiny as ‘personnel [file] or information’ the workings and determinations of a process whose quintessential purpose is to inspire public confidence.” Id. at 8-9.

The Department’s September 4"" response states that “[t]he Disposition and Final Disposition sections of the history were redacted in accordance with M.G.L. c.4, §7 (26)(c) also known as the “Privacy Exemption.” The Department’s response does not, however, further explain how the redacted portions of the record fit within the meaning of “personnel files” as established in Wakefield. Further, in her appeal petition, Ms. Barry argues that “[t]he Appeals Court has made a clear distinction between ‘personnel and medical records’ and ‘internal affairs records,’” In light of Ms. Barry’s petition, the Department must address whether the “Disposition” and “Final Disposition” sections of the record are comparable to those deemed public by the Appeals Court in Worcester. Accordingly, I find the Department has not met its burden to withhold the redacted portions of the record pursuant to Exemption (c).

Second clause of Exemption (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 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).

Andrea L. Stone SPR19/2049 Page 4 October 22, 2019

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.

In the Department’s September 4" response, it states that “[s]ections of the history were redacted in accordance with M.G.L. c.4, §7 (26)(c) also known as the ‘Privacy . Exemption’....[t]herefore the names of all civilians have been redacted.” Despite the Department’s response, it has not shown how the redacted portions would cause personal embarrassment to an individual of normal sensibilities; or how the redacted portions would reveal intimate details of a highly personal nature under Exemption (c). See PETA, 477 Mass. at 292, It is additionally unclear how the redacted portions are the type of information the second clause of Exemption (c) is designed to protect. Id. The Department must clarify this matter.

Conclusion

Accordingly, the Department is ordered to provide a response to Ms. Barry consistent with this order, the Public Records Law, and its Access Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Bleres

Rebecca S. Murray 4

Supervisor of Records ce: Stephanie Barry, The Republican