Jim Haddadin v. Walpole, Town of - Police Department (SPR 20200092)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31, 2020 SPR20/0092 John F. Carmichael Jr. Chief of Police · Walpole Police Department 972 Main Street Walpole, MA 02081 Dear Chief Carmichael: I have received the petition of Jim Haddadin, on behalf of Ryan Kath, both of NBCJO Boston, appealing the response of the Walpole Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on December 12, 2019, Ryan Kath requested four categories of records, including "[1] all internal investigation records pe1iaining to former Walpole Deputy Chief Christopher Mackenzie, including summary reports or notices provided to him regarding the initiation of internal investigations. This should also include any supplemental materials gathered during investigations like photos, videos, etc." and "[2] all written records of citizen complaints filed against Mackenzie[]." The Department provided a response on January 13, 2020, indicating that it does not possess internal affairs records responsive to item 1. However, the Department withheld personal notes pursuant to Exemption (e), and a citizen complaint responsive to item 2, under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (e), (f). Unsatisfied with the Department's response, Mr. Haddadin petitioned this office and this appeal, SPR20/0092, 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, § 1O A( 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 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 John Carmichael Jr. SPR20/0092 Page 2 January 31, 2020 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's January 131 response " In its January 13, 2020 response, the Department indicates that it does not have internal affairs records responsive to item 1, but rather, personal notes that it withheld under Exemption ( e ). With respect to item 2, the Department indicates that it withheld a citizen complaint pursuant to Exemptions (c) and (f). Item 1 - personal notes Exemption (e) Exemption ( e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption ( e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption (e). The second criterion of Exemption (e ) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption ( e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file.

Chief John Carmichael Jr. SPR20/0092 Page 3 January 31, 2020 Under Exemption (e), the Department states that the Chief's" ... personal notes are being withheld under [this] exemption ... since they were never shared or disclosed with any other person and are not part of the Police Department's files." Based on.a review of Mr. Haddadin's appeal petition, it does not appear that he is objecting to this portion of the Department's response. Item 2 - citizen complaint 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 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 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). 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).

Chief John Carmichael Jr. SPR20/0092 Page4 January 31, 2020 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 assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embanassment 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 , 4 77 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 Exemption (c), citing Wakefield and other case law, the Department states that the complaint is being withheld as a personnel record. Under the second clause of Exemption ( c ), the Department, acknowledging the three-factor test under PETA , states that after a careful review "certain information in the complaint form would clearly implicate the privacy rights of the individuals named therein. Therefore, it remains the [Department's] position that such reports cannot be disclosed at this time." Exemption (I) Exemption (f) permits the withholding of: investigatory 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)(f).

Chief John Carmichael Jr. SPR20/0092 Page 5 January 31, 2020 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 ale1i 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 PoHce of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). 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 asserts that the complaint" ... is currently under investigation by law enforcement officials. As such, it cannot be disclosed at this time since the premature disclosure of the requested record, which is inextricably linked to such investigation, would, in [the Department's] review, compromise such matters." The Department states that "[i]n addition to protecting records of ongoing investigations, exemption (f) has been held to allow investigative officials to provide an assurance of confidentiality to persons so that they will speak openly about matters under investigation. [Bougas, 371 Mass. at 62]. For those reasons, absent authorization or a court order to produce information obtained during the investigation, the names, addresses and identifying details of voluntary witnesses or complainants contained in the investigative reports may therefore be withheld from disclosure permanently. [Reinstein, 378 Mass. at 290]. Where identifying details regarding voluntary witnesses or complainants are inextricably intertwined with other information in the responsive record, the responsive record will be withheld in its entirety." In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to withhold the citizen complaint, in its entirety, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to the Depaiiment' s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records 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. Mass. 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.

Chief John Carmichael Jr. SPR20/0092 Page 6 January 31, 2020 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 impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with an un-redacted· copy of the citizen complaint for in camera inspection without delay. Sincerely, ~r~ Supervisor of Records cc: Jim Haddadin