Ken Pappas v. Tyngsborough, Town of (SPR 20202256)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 3, 2020 SPR20/2256 Matt Hanson Office of the Board of Selectmen Town of Tyngsborough 25 Bryants Lane Tyngsborough, MA 01879 Dear Mr. Hanson: I have received the petition of Ken Pappas appealing the response of the Office of the Board of Selectmen Town of Tyngsborough (Town) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 5, 2020, Mr. Pappas requested the following records: “… “ALL documents (complaints, recommendations, etc) leading up to and the executive session minutes and who voted what when released.” Unsatisfied with this response Mr. Pappas petitioned this office and this appeal, SPR20/2256, 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, § 10 A(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). Town’s November 16th response On November 16, 2020, the Town denied Mr. Pappas’ request stating those records were exempt from the Public Records Law pursuant to Exemption (c). Further, the Town stated “[t]he 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

Matt Hanson Page 2 SPR20/2256 December 3, 2020 records you have requested – records related to the Town’s investigation into an allegation of misconduct against its Animal Control Officer - fall squarely into category of exempt personnel records defined by the court in Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000).” Exemption (c) Exemption (c) applies to: 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 – 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). 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 ordinary employment evaluation and assessment. Unlike other 2

Matt Hanson Page 3 SPR20/2256 December 3, 2020 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). In its November 16th response, the Town states, “[i]t is the Town’s position that the documents responsive to your request cannot be properly characterized as an ‘internal affairs’ report. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). The Massachusetts Appeals Court has held that certain materials compiled during an “internal affairs investigation” are not necessarily exempt from disclosure as a personnel record under Exemption (c). In determining whether a document should be characterized as an “internal affairs” report, the court examined whether the report was developed as a result of citizen complaint made as part of a formalized process to address misconduct that would disrupt public trust and confidence “that is essential to law enforcement.” The Town’s November 16th response did not contain the specificity required in a denial of access to public records. The Town did not state whether the records can be redacted in a way to prevent the disclosure of the identities of those individuals with a privacy interest. Further, it is unclear what the status is of the Animal Control Officer(s). As a result, I find that the Town did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Town is ordered to provide Mr. Pappas with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

Matt Hanson Page 2 SPR20/2256 December 3, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ken Pappas 4