Matthew Rocheleau v. Dracut, Town of (SPR 20202411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2020 SPR20/2411 David Chartrand Deputy Chief of Police Town of Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Deputy Chief Chartrand: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Town of Dracut Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Rocheleau requested ten categories of records from the Department. At issue in this appeal is Mr. Rocheleau’s request for “any/all documentation describing the operation of all existing [D]epartment early-warning/intervention program(s).” The Boston Globe paid the estimate for the records regarding thirty-three (33) police officers in the early warning system. In a November 30, 2020 email, the Department informed Mr. Rocheleau that on the advice of the Town’s Legal Counsel, “[…since these documents are also in each officer’s personnel file we should not be releasing them. Even though I redacted the names of the officers, [Legal Counsel] has determined that there is potential that the records could be identified as belonging to a particular officer.” The Department created a sample record showing the type of information the actual records contain. Mr. Rocheleau’s check for the estimate was returned. As a result of this response, Mr. Rocheleau 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 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 David Chartrand SPR20/2411 Page 2 December 17, 2020 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). 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). First clause of (c) – personnel The Department asserts that the records regarding the 33 police officers may be withheld because of their placement in the personnel files of each of the police officers. 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

Deputy Chief David Chartrand SPR20/2411 Page 3 December 17, 2020 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). A personnel file or information “is not limited to nor does it extend to, all ‘files or information’ that are located physically in an individual employee's personnel file.” Wakefield, 431 Mass. at 797 n. 13; see also Globe Newspaper Co., 388 Mass. at 435 (not every bit of ------------------- information which might be found in a personnel or medical file is necessarily personal so as to fall within the exemption’s protection). 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 Telegram & Gazette Corp., 58 Mass. App. Ct. 1, 2 (2003). 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. 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 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., citing Globe Newspaper Co., 419 Mass. at 866 (emphasis added). The Department has not established how the responsive records are “useful in making employment decisions” that is similar to “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee” as contemplated by Wakefield. Further, the Department must explain how these responsive records are not records deemed public records, as described in Worcester above.

Deputy Chief David Chartrand SPR20/2411 Page 4 December 17, 2020 Burden of specificity; duty to segregate 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 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). Conclusion Accordingly, the Department is ordered to provide Mr. Rocheleau with a response to the request, 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: Matthew Rocheleau, Boston Globe