Dusty Christensen v. Amherst, Town of - Police Department (SPR 20202485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 29, 2020 SPR20/2485 Captain Ronald Young Amherst Police Department 111 Main Street Amherst, MA 01002 Dear Captain Young: I have received the petition of Dusty Christensen of the Daily Hampshire Gazette appealing the response of the Amherst Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 30, 2020, Mr. Christensen requested the following records: [1] Any internal investigation log, or other similar manner of tracking internal investigation cases, maintained by the Easthampton Police Department. [2] Any citizen’s complaint log, or other similar manner of tracking civilian complaints, maintained by the Easthampton Police Department. The Department responded on November 5, 2020, which included responsive records in redacted form pursuant to Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f). Unsatisfied with the Department’s response, Mr. Christensen petitioned this office and this appeal, SPR20/2485, 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Captain Roland Young SPR20/2485 Page 2 December 29, 2020 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. The Department’s November 5th response In its November 5, 2020 response, the Department states that the records “. . . may include information regarding voluntary complainants and witnesses, investigative techniques, personnel matters and witness statements relative to investigations. In consequence, the record requested has been redacted pursuant to [Exemptions (a), (c), and (f)].” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Department cites G. L. c. 214, § 1B and states that the statute “. . . prohibits disclosure of information that may constitute an unreasonable, substantia1, or serious invasion of personal privacy.” Please note that although the Department cites G. L. c. 214, § lB to support its position to redact responsive records, this statute does not specifically nor by

Captain Roland Young SPR20/2485 Page 3 December 29, 2020 implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § lB provides no alternative legal basis to resist inspection of requested materials).” Exemption (c) Exemption (c) of the Public Records Law 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). Internal affairs records Please note that the courts have contrasted the public status of disciplinary investigation

Captain Roland Young SPR20/2485 Page 4 December 29, 2020 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, 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police internal affairs investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8. Under Exemption (c), citing the Worcester and Wakefield decisions, the Department posits that “. . . release of these records without redacting names of those involved may constitute complaints, and disciplinary documentation concerning certain members of the [Department] including persons that may no longer be employed by the Town of Amherst, and such information is exempt from disclosure under the first clause of Exemption (c).” 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. In light of the Worcester decision described above, as well as the public interest in disclosure of internal affairs records, I find the Department has not met its burden to redact the responsive records, pursuant to the personnel clause of Exemption (c); specifically, it is unclear why the records are not public as determined by Worcester. Also, it is unclear how the names of individuals constitute one of the core categories of personnel information, such as an employment application, employee work evaluation, disciplinary documentation, or promotion, demotion, or termination information pertaining to a particular employee, which may be properly withheld from disclosure under the personnel clause of Exemption (c).

Captain Roland Young SPR20/2485 Page 5 December 29, 2020 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. 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 (PETA) v. Dep’t of Agric. Res., 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 26 Mass. App. Ct. 415, 427 (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 291. 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. Under the second clause of Exemption (c), the Department explains that “. . . releasing certain identifiable features about internal affairs records responsive to your request may contain specific allegations against officers, witness statements, and interviews, and details of a highly personal nature regarding individuals involved in the internal investigations, including detailed information regarding the personal lives or named individuals. Therefore, such records, to the extent they exist, have been redacted as disclosure may constitute an unwarranted invasion of personal privacy, and, further may be redacted, in part, to protect the personal privacy rights of any individual involved.” Based on the Department’s response, it is unclear what type(s) of information was redacted from the responsive records or how the redacted portions fall within the second clause of 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); see also 950 C.M.R. 32.06(3)(c)(4). Additionally, I find the Department has not demonstrated that the redacted portions constitute intimate details of a highly personal nature and that disclosure would result in personal embarrassment to an individual of normal sensibilities. Neither has the Department addressed the availability of such information

Captain Roland Young SPR20/2485 Page 6 December 29, 2020 from other sources. See PETA, 477 Mass. at 292. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which material would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an on-going investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department indicates “‘[t]he inquiry as to what constitutes identifying information regarding an individual . . . must be considered not only from the viewpoint of the public, but also from the vantage or those who are familiar with the individual and his career.’ Globe Newspaper Company v. Boston Retirement Board, 388 Mass. 427, 438 (1983). The risk of inadvertent disclosure must he viewed from the perspective of those familiar with the persons and matters at issue.” The Department asserts “[r]eleasing specific and identifiable information regarding internal affairs records may include confidential details provided to police investigators by complainants, voluntary witnesses, officers and/or alleged victims, the [Department] may redact that information in compliance with the law. Specifically, releasing too many identifying details regarding any voluntary witnesses and complainants are inextricably intertwined with other information-it doesn’t take long to determine who a complainant or a witness may have been based on specific released information.” Based on the foregoing, it is unclear what information has been withheld and how releasing such information would lead to the direct or indirect identification of voluntary witnesses and complainants.

Captain Roland Young SPR20/2485 Page 7 December 29, 2020 Conclusion Accordingly, the Department is ordered to provide Mr. Christensen with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Dusty Christensen