Matthew Rocheleau v. Wellesley, Town of - Police Department (SPR 20201408)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2020 SPR20/1408 Lieutenant Marie Cleary Records Access Officer Wellesley Police Department 485 Washington Street Wellesley, MA 02482 Dear Lt. Cleary: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Wellesley Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 3, 2020, Mr. Rocheleau requested, “[a]ny/all logs/lists of internal investigation cases of Wellesley Police Department employees from Jan. 1, 2010 through present, including but not limited to pending cases…” On August 17, 2020, the Department provided a responsive record to Mr. Rocheleau with redactions made under Exemption(c). Unsatisfied with the Department’s response, Mr. Rocheleau appealed to this office, and SPR20/1408 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, § 10A(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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Lieutenant Marie Cleary SPR20/1408 Page 2 September 1, 2020 The Department’s August 17th response In its August 17th response, the Department states, “[t]he Department is in possession of a document responsive to your request… portions of the record are protected by Exemption (c) to the law and have been redacted.” The Department explains “[i]n Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass App Ct 1 (2003), the Court stated that ‘[w]hile the precise contours of the legislative term ‘personnel [file] or information’ may require case-by- case articulation, it includes, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.’… [t]hus, information that identifies an officer as the subject of an investigation, the findings of the Department, and disciplinary steps taken in response, if any, are protected from public disclosure.” 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 of Exemption (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

Lieutenant Marie Cleary SPR20/1408 Page 3 September 1, 2020 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). 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 affair 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 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. Citing Worcester, the Department asserts its position “where a citizen filed a complaint against an officer, the Department has released the name of that officer and the nature of the complaint. However, the findings of that investigation and the discipline imposed, if any, are still subject to redaction under Exemption (c).” The Department further posits “[t]he ledger is not an internal affairs document and, like the internal memoranda in Worcester Telegram & Gazette documenting the disciplinary action taken because of the citizen complaint, the disciplinary information here is protected.”

Lieutenant Marie Cleary SPR20/1408 Page 4 September 1, 2020 In his appeal, Mr. Rocheleau states “…the department redacted from the copy of the log it provided most details about internal investigation cases that were initiated by the department; namely the department redacted for such cases: the name of the officer(s) involved in each case; the date of the complaint; the description of the complaint; and the disposition. (Note: This appeal is not contesting the department's redactions of information about punitive action…” Mr. Rocheleau indicates “[i]nformation that identifies an officer as the subject of an investigation, the nature/description of the case, the findings of the department, and the date the case opened, are not core categories of personnel information, nor are they otherwise exempt under the public records law.” Based on the Department’s response, I find that the Department has not met its burden to redact the responsive report pursuant to the personnel clause of Exemption (c). Specifically, the Department has not met their burden under Exemption (c) to redact the office name, date of complaint, description of complaint, and disposition or the responsive record. Order Accordingly, the Department is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as is practicable. 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, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau