Julie A. Halaby v. Boston, City of - Public Records (SPR 20210064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 26, 2021 SPR21/0064 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Julie A. Halaby Esq. of Halaby Law Group appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2020, Attorney Halaby requested “…the complete Internal Affairs Division (IAD) file for Case #IAD2020-0306, including but not limited to any and all investigation reports and bases for determining that the complaint should be classified as ‘unfounded’ as stated in the September 18, 2020 memorandum…” 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Shawn A. Williams, Esq. SPR21/0064 Page 2 January 26, 2021 The City’s December 4, 2020 response The City responded on December 4, 2020 and stated that the request was denied pursuant to “the personnel records clause contained in the privacy exemption to the public records law G.L. c. 4. S. 7(26)(c).” Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. 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 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

Shawn A. Williams, Esq. SPR21/0064 Page 3 January 26, 2021 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 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. In its December 4, 2020 response, the City, citing Wakefield, asserted, “[t]he record you seek consists of the file regarding an allegation of misconduct filed against Nicole Taub an attorney [who] … is not a police officer ” The City posits, “…the internal affairs process, for public records disclosure purposes, applies only to police officers.” The City states that “... the Supervisor of Records has consistently found that disciplinary records of non-police officers are exempt from disclosure.” 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 City did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemption (c) of the Public Records Law. 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). Any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure.

Shawn A. Williams, Esq. SPR21/0064 Page 4 January 26, 2021 G. L. c. 66, § 10(a). It is unclear if the requested internal affairs case file is that of a police officer and it contains information relating to a complaint against a named attorney, or if the requested internal affairs case file is solely comprised of an investigation into a complaint against a named attorney. The City must clarify this issue. Conclusion Accordingly, the City is ordered to provide Attorney Halaby 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: Julie A. Halaby Esq.