Matthew Rocheleau v. Wellesley, Town of - Police Department (SPR 20201836)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 14, 2020 SPR20/1836 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…” Previous Appeal This request was the subject of a previous appeal. See SPR20/1408 Determination of the Supervisor of Records (September 1, 2020). In my September 1st determination, I found the Department had not met its burden to redact the responsive report pursuant to the personnel clause of Exemption (c). Specifically, the Department had not met their burden under Exemption (c) to redact the office name, date of complaint, description of complaint, and disposition or the responsive record. I ordered the Department 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. On September 28, 2020, the Department provided said response. Unsatisfied with the Department’s response, Mr. Rocheleau appealed to this office, and SPR20/1836 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 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 SPR20/1836 Page 2 October 14, 2020 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). The Department’s September 28th response In its September 28th response, the Department states, “[t]he Department does not maintain a list or log of internal investigations or disciplinary actions. To foster transparency, the Department reviewed its personnel files and created a log for you. The log includes internal affairs investigations that were initiated by a citizen’s complaint, as well as employee reviews that were undertaken at the initiation of the Department. Where the internal investigation was initiated by a citizen complaint, the Department provided you with information on the officer involved, the date of the complaint, the description of the complaint and the investigating officer. Under Exemption (c), the Department withheld the disposition of the complaint and any punitive action taken. In comparison, the Department only provided the name of the investigator, while withholding all other information, where the employee review originated through a Departmental review of its employees.” 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

Lieutenant Marie Cleary SPR20/1836 Page 3 October 14, 2020 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). 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. Citing Worcester, the Department asserts its position “[t]he record created and shared with you contains investigations and assessments of employees that were initiated by the Department itself and did not come about through a ‘formalized citizen complaint procedure.’ Thus, the holding in Worcester, which relies heavily on the unique posture of citizen-initiated complaints, does not apply. These records are similar to employment assessments and disciplinary documentation, both of which are protected by Exemption (c).” The Superior Court addressed the application of the Worcester decision to the records of non-criminal Internal Affairs investigations in Leeman v. Cote. 21 Mass.L.Rptr. 411, 2006 WL 2661436 (Mass.Sup.Ct. 2006). In Leeman, the court specifically rejected a police department’s attempt “to distinguish Worcester Telegram on the basis of the identity of the applicant for the file and the absence of issues of theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, or harassment.” Id. at 5. The court found that “these considerations may temper the degree of public interest in disclosure of the [records], but they do not qualify the record as a personnel file or personnel information.” Id. The court further stated that “[t]he statutes contain no ‘non-police matter’ exemption.” Id.

Lieutenant Marie Cleary SPR20/1836 Page 4 October 14, 2020 The court likewise rejected the argument that the identity of the complainant who initiated the investigation affects the status of the records. The court found that “the competence and integrity of a police force are intrinsically public concerns. That concern endures without regard to the identity of a complainant or inquisitor as either a member of the force or a member of the citizenry.” Id. at 6. Based on the City’s responses, the issues presented in this appeal appear analogous to that addressed by Justice Sikora in Leeman. The fact that the complaint was brought by a member of the force, not a private citizen, does not distinguish the records from those deemed public in Worcester. Accordingly, the responsive report is not exempt from disclosure under the personnel clause. See Worcester, 58 Mass. App. Ct. at 9 (finding that an internal affairs report and investigative documents fall outside the statutory exemption for “personnel [file] or information”). Therefore, I find that the City has not met its burden to redact the responsive record pursuant to the personnel clause of Exemption (c). Order Given that the City has not met its burden to redact the responsive record, the City is to provide Mr. Rocheleau with a copy of the responsive records 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, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau