Gary G. Nolan, Esq. v. Northampton, City of - City Clerk (SPR 20192524)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen;isor of Records January 8, 2020 SPR19/2524 Pamela L. Powers City Clerk City of Northampton 210 Main Street, Room 4 Northampton, MA 01060 Dear Ms. Powers: I have received the petition of Attorney Gary G. Nolan, on behalf of NEPBA Local 187, appealing the response of the City of Northampton (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Nolan requested an investigative report pertaining to an identified complaint filed by a police officer for the City. Tlte 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); 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 In its November 13, 2019 response, the City claims the personnel clause of Exemption (c) of the Public Records Law to withhold responsive records from disclosure. Exemption (c) 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

Pamela M. Powers SPR19/2524 Page 2 January 8, 2020 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 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 pe1iaining 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, at436n.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, ce1iain 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 Comi reasoned that openness in a police internal affair investigatory proces.s, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8.

Pamela M. Powers SPR19/2524 Page 3 January 8, 2020 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 (t heft, 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. Citing Wakefield, City asserts its position "that the requested investigative repmi, in its entirety falls under the purview of persmmel file exemption contained in M.G.L. c. 4 § 7 (26)( c) and is therefore exempt from public disclosure." The City states that "while the requested report does in fact pe1iain to an investigation of certain police department employees, the repmi, unlike the repmi subject to disclosure in Worcester ... is not an internal affairs investigation prompted by a public citizen complaint against a police in which the police depatimentitself investigates." The City attempts to distinguish the responsive records from the internal affairs file at issue in Worcester, noting that "the requested investigative repmi pe1iains to a workplace investigation that was prompted by a police officer's complaint of alleged violations of workplace rules by his supervisors (as opposed to a complaint as a public citizen)." The Superior Cami addressed the application of the Worcester decision to the records of non-criminal Internal Affairs investigations in Leeman v. Cote. 21 Mass.L.Rptr. 411, 2006 WL 2661436 (Mass.Sup.Ct. 2006). In Leeman, the cou1i specifically rejected a police depaiiment's attempt "to distinguish Worcester Telegram on the basis of the identity of the applicant for the file and the absence of issues of theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, or harassment." Id. at 5. The court found that "these considerations.may temper, the degree of public interest in disclosure of the [records], but they do not qualify the record as a personnel file or personnel information." Id. The court further stated that "[t]he statutes contain no 'non-police matter' exemption." Id. The court likewise rejected the argument that the identity of the complainant who initiated the investigation affects the status of the records. The court found that "the competence and integrity of a police force are intrinsically public concerns. That concern endures without

Pamela M. Powers SPR19/2524 Page 4 January 8, 2020 regard to the identity of a complainant or inquisitor as either a member of the force or a member of the citizemy." Id. at 6. Based on the City's responses, the issues presented in this appeal appear analogous to that addressed by Justice Sikora in Leeman. The fact that the complaint did not allege criminal activity, and was brought by a member of the force, not a private citizen, does not distinguish the records from those deemed public in Worcester. Accordingly, the responsive report is not exempt from disclosure under the personnel clause. See Worcester, 58 Mass. App. Ct. at 9 (finding that an internal affairs report and investigative documents fall outside the statutory exemption for "personnel [file] or information"). Therefore, I find that the City has not met its burden to withhold the responsive report, in its entirety, pursuant to the personnel clause of Exemption (c). Conclusion Given that the City has not met its burden to withhold responsive records, in their entirety, pursuant to Exemption (c), the City is ordered to review the records, redact where necessary, and provide Mr. Nolan with responsive records, 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, ~ I T ~ Supervisor of Records cc: Gary G. Nolan, Esq.