Robert Jackson v. Tyngsborough, Town of - Police Department (SPR 20210156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 5, 2021 SPR21/0156 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 Robert Jackson appealing the response of the Town of Tyngsborough (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Jackson requested “copies of the investigation into the Town of Tyngsborough Animal Control Officer (ACO)…including, but not limited to, all social media posts, written materials, files, attachments and any other information provided by the Tyngsborough Police Department or any other Town Office's or Officials of Tyngsborough or any other sources that were used for the Executive Session hearing by the Town of Tyngsborough and the Selectmen and Town Administration on October 29th, 2020 as well as any other hearings that were held or other information that was collected pertaining to the issue of the ACO making inappropriate public social media posts.” Previous Appeal This request was the subject of a previous appeal. See SPR20/2315 Determination of the Supervisor of Records (December 9, 2020). In my December 9th determination, I found that the Town had not met its burden to withhold all of the requested records pursuant to the personnel clause of Exemption (c). The Town was ordered to provide Mr. Jackson with a supplemental response to his request, in a manner consistent with the order, the Public Records Law and its Regulations. The Town provided said response on January 19, 2021. Unsatisfied with the Town’s response, Mr. Jackson petitioned this office and this appeal, SPR21/0156, 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 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 Woods SPR21/0156 Page 2 February 5, 2021 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. The Town’s January 19th response In its January 19th response, the Town states Mr. Jackson has “sought records related to a disciplinary matter involving a civilian contractor for the Town under the supervision of the Town’s Police Chief. On October 29, 2020, the Town’s Board of Selectmen convened in executive session in accordance with G.L. c. 30A, §21(a)(1) to discuss complaints and potential disciplinary action against this individual. During the executive session, the Board discussed two documents: 1) a report authored by a member of the Police Department concerning Facebook posts published by the individual (‘Report’); and 2) a recommendation issued by the Police Chief, in which he recommended specific disciplinary action against the individual based on the findings of the Report (‘Recommendation’). Attached to the Report was a series of Facebook posts that were reviewed.” The Town indicates it “is withholding all records responsive to your request under Exemption (c); namely, the Report (with attached Facebook posts) and the related Recommendation, both of which concerned a civilian contractor, who is not a sworn law enforcement officer. Both the Report and Recommendation constitute exempt ‘personnel information’ pursuant to Exemption (c) of the public records law.” The Town contends “[b]ecause the subject of the Report is not a law enforcement officer, neither record can be properly characterized as a non-exempt ‘Internal Affairs Report’ as that term is narrowly defined by the Appeals Court in Worcester Telegram & Gazette v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003).” In camera inspection In order to facilitate a determination as to the applicability the Town’s Exemption (c) claim, the Town must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This

Deputy Chief Shaun Woods SPR21/0156 Page 3 February 5, 2021 office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with of an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Jackson