Robert Jackson v. Tyngsborough, Town of - Police Department (SPR 20202315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2020 SPR20/2315 Shaun M. Woods Deputy Chief of Police Town of Tyngsborough Police Department 20 Westford Road Tyngsborough, MA 01879 Dear Mr. Woods: I have received the petition of Robert Jackson appealing the response of the Town of Tyngsborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Jackson requested “copies of the investigation into the Town of Tyngsborough Animal Control Officer (ACO)…including, but not limited to, all social media posts, written materials, files, attachments and any other information provided by the Tyngsborough Police Department or any other Town Office's or Officials of Tyngsborough or any other sources that were used for the Executive Session hearing by the Town of Tyngsborough and the Selectmen and Town Administration on October 29th, 2020 as well as any other hearings that were held or other information that was collected pertaining to the issue of the ACO making inappropriate public social media posts.” The Town responded on November 16, 2020, withholding responsive records pursuant to the personnel clause of Exemption (c). Unsatisfied with the Town’s response, Mr. Jackson petitioned this office and this appeal, SPR20/2315, 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); 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 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

Deputy Chief Shaun Woods SPR20/2315 Page 2 December 9, 2020 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. Current Appeal In its November 16, 2020 response, the Town indicates that it is withholding the responsive records pursuant to the personnel clause of Exemption (c) of the Public Records Law. 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 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).

Deputy Chief Shaun Woods SPR20/2315 Page 3 December 9, 2020 In its response, the Town states that “the 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 Association.” The Town argues that “the complaints lodged against the Town's Animal Control Officer, who is not a sworn law enforcement officer, were neither citizen complaints, nor did they allege ‘criminal acts’ that would undermine the relationship of trust and confidence between police and the citizenry that is essential to law enforcement. Worcester Telegram & Gazette, 58 Mass. App. Ct. at 7.” The Town therefore concludes that “the report and related materials concerning the complaints against the Animal Control Officer are not properly characterized as ‘internal affairs’ records, and thus will be withheld from disclosure pursuant to the first clause of Exemption (c) of G.L. c. 4, §7(26).” Based on the Town’s response, I find that it has not met its burden to withhold all of the requested records pursuant to the personnel clause of Exemption (c). In particular, it is unclear exactly what documents the Town possesses and intends to withhold. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Jackson with a supplemental response to this request, to be 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Jackson