MaryEllen LaBarre v. Springfield, City of - Police Department (SPR 20200448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 5, 2020 SPR20/0448 Andrea L. Stone Public Records Coordinator City of Springfield, City Clerk's Office 36 Court Street, Room 123 Springfield, MA 01103 Dear Ms. Stone: I have received the petition ofMaryEllen LaBarre appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. LaBarre requested a copy of a report related to "Springfield Police Department Internal Investigation complaint filed by myself under my name on arson/stolen auto case 187792-0F." The City responded on February 6, 2020 by providing responsive records with portions redacted under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see 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. Appeal In its February 6th response the City indicates "[p]ersonnel in the Internal Investigation 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 SPR20/0448 Page 2 March 5, 2020 Unit have submitted a copy of IIU Report #A 119-15 as being responsive to your request. ... " You explain that the City redacted portions of the record under both clauses of Exemption ( c) . Exemption (c) Exemption (c) of the Public Records Law 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) - 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, relevant to this determination, creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information will be of a sufficiently personal nature to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Med. Examiner,404 Mass. 132, 135 (1987). With respect to the medical clause of Exemption (c), the City asserts "[a]ny medical information referenced in the report has been redacted because the City believes that this information is exempt from disclosure as public records pursuant to M.G.L. c.4, §7 (26)( C) .... " First clause ofE xemption (c) - personnel 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).

Andrea L. Stone SPR20/0448 Page 3 March 5, 2020 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 Telegram & Gazette Corp.,' 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. 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 ordina,y 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. at 7-8, citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). The City explains that it redacted the "Disposition and Final Disposition sections of the document" under the personnel clause of Exemption (c). 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

Andrea L. Stone SPR20/0448 Page4 March 5, 2020 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. The City indicates that it redacted the following information under the privacy clause of Exemption ( c ): "[n James of all individuals, who are not employees of a municipality or a state agency; [t]he home addresses of all individuals named in the reports; and [t]elephone numbers listed [i]n the reports that the City can not confam are residential telephone numbers, cellphone numbers, or business telephone numbers." Basis oft he appeal In her appeal petition Ms. LaBarre asserts, in part, "I am requesting the Supervisor of Public records to review the redacted narratives on all attached Springfield Police Department reports and note if all the redactions fall under M.G.L. c 4 & 7[26][c] known as privacy exemption. And that these redacted sections in fact contain personnel and medical files." Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. LaBarre's purpose in making the request has no bearing on the public status of any existing responsive records. In camera inspection In order to facilitate a determination as to the applicability of its exemption claims, the City must provide this office with an unredacted copy of the responsive records at issue for an in camera inspection. 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.

Andrea L. Stone SPR20/0448 Page 5 March 5, 2020 This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts 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. 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. 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. Conclusion Accordingly, the City is ordered to provide this office with an unredacted copy of the responsive records at issue for in camera inspection without delay. The City may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: MaryEllen LaBarre