Robert Jackson v. Tyngsborough, Town of (SPR 20210704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2021 SPR21/0704 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); SPR21/0156 Determination of the Supervisor of Records (February 5, 2021); SPR21/0156 Determination of the Supervisor of Records (March 5, 2021). In my March 5th determination, I found the Town had not met its burden to withhold the requested records in their entirety under Exemption (c). Specifically, the Town’s response had not sufficiently explained why an ACO is not law enforcement under the Worcester decision. I ordered the Town to provide a response to Mr. Jackson, in a manner consistent with the order, the Public Records Law and its Regulations. The Town provided said response on March 19, 2021. Unsatisfied with the Town’s response, Mr. Jackson petitioned this office and SPR21/0704 was opened as a result. 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 SPR21/0704 Page 2 April 5, 2021 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. The Town’s March 19th response In its March 19th response, the Town indicates it is “withholding two documents: 1) an investigative report authored by a member of the Police Department concerning Facebook posts published by the Town’s Animal Control Officer (‘Report’); and 2) a recommendation issued by the Police Chief, in which he recommended specific disciplinary action against the Animal Control Officer based on the findings from the Report (‘Recommendation’).” Exemption (c) Exemption (c) applies to: 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). Analysis under 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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 exemption 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

Deputy Chief Shaun Woods SPR21/0704 Page 3 April 5, 2021 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 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, 427 (1988) - - - - - (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption 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. The Town posits that “despite the fact that the individual reported to the Police Chief, the Town’s ACO is not a ‘police officer’ and has never been authorized to perform police functions or exercise law enforcement powers. Police departments throughout the state routinely employ and supervise civilian employees, including dispatchers and administrative staff, who are not considered police officers despite their employment within the police department. As such, because the subject of the Report is not a ‘police officer’, it cannot be characterized as an ‘internal affairs investigation’, and the findings of Worcester are not applicable.” However, where the public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner, the Town has not met its burden to withhold the requested records in their entirety under Exemption (c). See PETA, 477 Mass. at 291. Order Accordingly, the Town is ordered to review the request, redact the responsive record where appropriate and provide a response to Mr. Jackson in accordance with 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: Robert Jackson Robert Mills, The Lowell Sun Timothy Zessin, Esq., KP Law