Benjamin Maddison v. Northampton, City of - Police Department (SPR 20201417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2020 SPR20/1417 Jennifer DiCarlo Principal Records Clerk Northampton Police Department 21 Center Street Northampton, MA 01060 Dear Ms. DiCarlo: I have received the petition of Benjamin Maddison appealing the response of the Northampton 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 July 29, 2020, Mr. Maddison requested five categories of records related to “AOM-P251 Policy on Citizen complaints,” including “the evaluation of the complaint and the recommendation as to the appropriate adjudication and disposition of the incident.” Claiming to not have received the responsive records, Mr. Maddison appealed to this office, and SPR20/1417 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

Jennifer DiCarlo SPR20/1417 Page 2 September 2, 2020 Current Appeal Subsequent to the opening of this appeal, on August 21, 2020, the Northampton City Solicitor, Alan Seewald, provided a response to Mr. Maddison. In his response, Attorney Seewald provided Mr. Maddison with responsive records, and withheld category five of his request pursuant to Exemption (c). In his August 21st response, Attorney Seewald states “[i]n response, the Northampton Police Department has attached all responsive documents to requests 1 – 3, inclusive. The Department has no documents responsive to request 4. Any documents relative to the disposition of the complaints are personnel files subject to Exemption (c) under the Public Records Law.” Unsatisfied with this response, Mr. Maddison emailed this office on August 24, 2020, with his contentions relating to the Department’s Exemption (c) claim. Therefore, the Department’s Exemption (c) claim will be addressed below. 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).

Jennifer DiCarlo SPR20/1417 Page 3 September 2, 2020 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). Burden of specificity in claiming exemptions The Department denied Mr. Maddison’s request without providing any support to withhold the responsive record under Exemption (c) of the Public Records Law. Please be advised, under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption(s) which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper - - - Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive record in its entirety is exempt from disclosure under Exemption (c). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public record. G. L. c. 66, § 10(a). Order Accordingly, the Department is ordered to provide Mr. Maddison 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: Benjamin Maddison Alan Seewald, Esq.