Karen Anderson v. Tyngsborough, Town of - Police Department (SPR 20202367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 10, 2020 SPR20/2367 Shaun M. Woods Deputy Chief of Police Town of Tyngsborough Police Department 20 Westford Road Tyngsborough, MA 01879 Dear Deputy Chief Woods: I have received the petition of Karen Anderson, WCVB Channel 5 Boston, appealing the response of the Town of Tyngsborough (Town) Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Anderson requested: “[a]ll records, documents and attachments related [to] the investigation into social media posts made by [an identified employee of the Town’s] animal control department.” On November 16, 2020, the Department provided Ms. Anderson with a response, denying her request in its entirety under Exemption (c) of the Public Records Law. As a result, Ms. Anderson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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

Deputy Chief Shaun M. Woods SPR20/2367 Page 2 December 10, 2020 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). 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 Publ’g Co. v. Register of Probate for Norfolk Cnty., 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). In its November 16th response, the Department asserts: “…the Town’s position that the records [Ms. Anderson has] requested – records related to the Town’s investigation into an allegation of misconduct against its [identified employee of Animal Control] – fall squarely into category of exempt personnel records defined by the court in Wakefield Teachers Association…It is the Town’s position that

Deputy Chief Shaun M. Woods SPR20/2367 Page 3 December 10, 2020 the documents responsive to your request cannot be accurately characterized as an ‘internal affairs’ report. See Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003).” 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, 58 Mass. App. Ct. at 7-8. In its November 16th response, the Department also asserts, “…[i]t is the Town’s position that here, the complaints lodged against an [identified employee of] the Town’s Animal Control, 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.” The Department posits that the report and related materials are not characterized as internal affairs records. I find that the Department must explain how the records responsive to Ms. Anderson’s request are not internal affairs records as described above. Burden of specificity; duty to segregate The Department denied Ms. Anderson’s request under the personnel clause of Exemption (c) without providing the requisite support to withhold all the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption 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 records, in their entirety, are exempt from disclosure. 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 records. G. L. c. 66, § 10(a). In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under Exemption (c). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify what type of record(s) it has in its possession that the Department withheld.

Deputy Chief Shaun M. Woods SPR20/2367 Page 4 December 10, 2020 Conclusion Accordingly, the Department is ordered to provide Ms. Anderson 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Karen Anderson, WCVB Channel 5 Boston