Gary G. Nolan, Esq. v. Northampton, City of - City Clerk (SPR 20200126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 6, 2020 SPR20/0126 Pamela L. Powers City Clerk City of Northampton 210 Main Street, Room 4 Northampton, MA O1 060 Dear Ms. Powers: I have received the petition of Attorney Gary G. Nolan, on behalf ofNEPBA 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, Attorney Nolan requested an investigative report pertaining to an identified complaint filed by a police officer for the City. Previous Appeal The request records have been the subject of a prior appeal. See SPR 19/2524 Determination of the Supervisor of Records (January 8, 2020). In my January 8th determination, I found that the City had not met its burden to withhold the responsive report pursuant to the personnel clause of Exemption (c), and ordered the City to review the records, redact where necessary, and provide a response to Attorney Nolan. The City provided this response on January 22, 2020, providing a redacted version of the requested report. Unsatisfied with the response, Attorney Nolan petitioned this office and this appeal, SPR 20/0126, 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 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). 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 SPR20/0126 Page2 February 6, 2020 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 In its January 22nd response, the City states that it has redacted the responsive report pursuant to "the privacy and personnel file exemptions contained in M.G.L. c. 4 § 7(26)(c) as well as the case law governing the same." The City indicates that it has redacted "the names of all City Police Officers who were investigated, interviewed or discussed in the report." The City argues that "failure to do so would have a chilling effect on the ability of employees to raise protected complaints, and the willingness of individual witnesses to come forward with information." It additionally argues that disclosure "would also unduly invade the privacy of those found to have committed wrongdoing." Further, the City "redacted all information concerning the specific disciplinary and coaching recommendations as to specific individuals investigated in the report." 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 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, 4 77 Mass. at 291. The

Pamela M. Powers SPR20/0126 Page 3 February 6, 2020 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. Names ofI ndividual Witnesses In its January 22nd response, the City argues that the Leeman decision "clearly indicates that the parties can and should redact specific names and addresses to protect persons named in the report from an unwarranted invasion of privacy." Echoing the reasoning behind Exemption (f), the City indicates that it has redacted witness and complainant names to prevent "a chilling effect on the ability of employees to raise protected complaints, and the willingness of individual witnesses to come forward with information." In his appeal petition, Attorney Nolan argues "the wholesale redaction of the names of police officers - in a complaint filed by a police officer ... are, per Justice Grasso in the Worcester case, specifically mandated to be disclosed." However, the court in Worcester specifically noted that its decision addressed only the personnel clause of Exemption (c), and did not consider the privacy clause of Exemption (c) or Exemption (f). Worcester, 58 Mass.App.Ct. at 10-11. The Massachusetts Appeals Court addressed the issue of witness identity protection in Antell v. Attorney General, in which it ordered the production of the Attorney General's investigation file into allegations of misconduct in the Amesbury police department. Antell, 52 Mass. App. Ct. 244,249 (2001). Addressing the custodian's Exemption (f) claims, the court concluded that because "many of the witnesses' statements appear to have arisen from internal conflicts within the Amesbury police depaiiment, the materials should be redacted so as to protect the individual informant's identities." See id. Based on the above, I find that the City has met its burden to redact the names of the complaining party and voluntary witnesses. Names ofS ubjects ofI nvestigation The City has additionally redacted the names of the subjects of the accusations at issue in the subjective report. The City argues that "it would unduly invade the privacy of those found to have committed wrongdoing" to release these names. While the City's response suggests that disclosure may "result in personal embarrassment to an individual of normal sensibilities," it is unclear how this information constitutes "intimate details of a highly personal nature." See PETA, 477 Mass. at 292 (establishing a three-factor test to evaluate the weight of privacy interests under Exemption (c)). The Massachusetts courts have declared that analysis under the privacy clause of Exemption (c) requires a balancing of the public's right to know against the privacy interests at stake. See id., see also Torres, 391 Mass. at 9. The court in PETA recognized that the public has an interest in knowing whether public officials are carrying out their duties in a law-abiding manner. See PETA, 477 Mass. at 292. Under the balancing test set out in PETA , I find that the public interest in disclosure substantially

Pamela M. Powers SPR20/0126 Page4 February 6, 2020 outweighs any privacy interest held by the individuals who are the subjects of the report. See Worcester, 58 Mass.App.Ct. at 7-8 (identifying the public interest in the "full and fair assessment a of police department's internal investigation of its officer's actions" as "essential to law enforcement and the protection of constitutional rights"). Accordingly, the City may not redact these names. Disciplinary Information The City also indicates that it has redacted "disciplinary and coaching recommendations" from the investigative report. Given that the report was written by a third party investigator, the disciplinary recommendations contained in the report are unlike the disciplinary memorandum held to be exempt in Worcester. See Worcester, 58 Mass.App.Ct. at 10 (finding the "actual order and notice of disciplinary action issued as a personnel matter from the chief to the target of the disciplinary investigation to be exempt"). It is unclear how these redacted sections constitute personnel information within the meaning of Exemption (c). Accordingly, the City has not met its burden to redact this information. Conclusion Accordingly, the City is ordered to provide Attorney Nolan with a supplemental response, 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, ·~~ a-- Rebecca S. Murray . Supervisor of Records cc: Gary G. Nolan, Esq.