Matthew Rocheleau v. Holden, Town of - Police Department (SPR 20202428)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2428 Timothy J. Sherblom Chief of Police Town of Holden Public Safety Building 1370 Main Street Holden, MA 01520 Dear Chief Sherblom: I have received the petitions of Matthew Rocheleau of the Boston Globe appealing the response of the Holden Police Department (Department) to his request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rocheleau requested numerous documents from the Department. The request at issue in this appeal is as follows: • “Any/all logs/lists of internal investigation cases of police department employees from Jan. 1, 2010 through present, including but not limited to pending cases. Please include the current disposition of each case, as well as any final disciplinary action linked to complaint.” Previous Appeals This request was the subject of previous appeals. See SPR20/1410 Determination of the Supervisor of Records (August 31, 2020); SPR20/2204 Determination of the Supervisor of Records (November 23, 2020). Unsatisfied with the Department’s response, Mr. Rocheleau appealed and SPR20/2428 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 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

Timothy J. Sherblom SPR20/2428 Page 2 December 22, 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 is based…”); 950 C.M.R. 32.06(3); - se - e -al-so- -D-is-t.- A-t-to-rn-e-y- fo-r- t-he- -N-or-f-ol-k- D-i-st-. v-.- F-la-tl-e-y, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Department’s December 7, 2020 response In its December 7th response, the Department, through its counsel D.M. Moschos of Mirick O’Connell, asserted, “… the [Department] is unwilling to provide the names of the officers but instead, provided the officers’ ranks. The [Department] did provide the other information requested.” The Department cited Exemption (c) to withhold the requested 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). 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). 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

Timothy J. Sherblom SPR20/2428 Page 3 December 22, 2020 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). The Department asserts that the responsive record is an investigation into a personnel matter and not an internal affairs investigation. The Department stated, “the internal affairs investigations contained on the list were conducted by the Department due to department operational complaints and not as a result of citizen complaints; therefore, those investigations were strictly personnel matters, and not the type of matters governed by the City of Worcester case [and] [b]ased on those exemptions the officers’ names involved in these matters are not a public record.” 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. Further, the Court in Leeman, concluded that the fact that officers of the police department initiated the complaint alleging misconduct during an exam was not dispositive to classify the documents as personnel records, different from records of an internal affairs investigation. See Id. Based on the Department’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 Department has not met its burden to redact the responsive record pursuant to the personnel clause of Exemption (c). Second clause of Exemption (c) - Privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis.

Timothy J. Sherblom SPR20/2428 Page 4 December 22, 2020 This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals. Inc. (PETA) v. Department of Agricultural Resources, 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. ---------------------------- App. Ct. 415, 428 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 292. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its response, the Department states, “[t]he names of the officers are not a public record because: They are exempt from disclosure under the ‘privacy’ exemption to the Public Records Law … [and] are exempt under M.G.L. c. 214 §1B (the Massachusetts Privacy statute).” Further, the Department asserted, “[t]wo of the five matters were not sustained, and are 5 years old. The Superior Officer case involved an officer who is no longer a member of the Department and, therefore, it is not reasonable to release his name. To release those officers’ names would be unreasonable and an invasion of their privacy.” Other than citing the Exemption (c), the Department provided no explanation as to why such records should be withheld in their entirety, other than to state that " the investigations were strictly personnel matters, and not the type of matters governed by the City of Worcester case [and] [t]he names of the officers are not a public record because: They are exempt from disclosure under the ‘privacy’ exemption.” In its response, the Department did not explain the privacy interest at stake. In light of the PETA decision, I find the Department has not demonstrated how the report contains intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has it addressed the availability of such information from other sources. As such, I find the Department has not met its burden of specificity applying the exemption to withhold the records under the privacy clause of Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Timothy J. Sherblom SPR20/2428 Page 5 December 22, 2020 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, - ~ .·I- . . •.- ·. ·· Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau