Laura Crimaldi v. Stoughton, Town of - Police Department (SPR 20210812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 13, 2021 SPR21/0812 Donna McNamara Chief of Police Stoughton Police Department 26 Rose Street Stoughton, MA 02072 Dear Chief McNamara: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the Stoughton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 5, 2021, Ms. Crimaldi requested the following records: 1. Any and all calls for service for [] Holbrook Ave. in Stoughton from 2/27/2012 to 2/4/2021; 2. Employment application for [an identified individual]; 3. Any and all documents associated with internal affairs cases, complaints, or Investigations involving [an identified individual], including but not limited to internal and citizen complaints, case numbers, allegations, dispositions, outcomes, and discipline; 4. Any and all awards, commendations, and citations issues [sic] to [an identified individual]; 5. Payroll and attendance records for [an identified individual] from 12/1/2020 to the present; 6. Start dates and titles for all positions held by [an identified individual] within the Stoughton Police Department; 7. Any and all e-mails and/or text messages between [an identified individual’s] department issued email address and/or cellphone and telephone number . . . and . . .@gmail.com; and 8. Any and all Stoughton police department records regarding [an identified individual], (5/13/1997 to 2/4/2021), including any documents regarding employment or participation in Stoughton Police Department programs. The Department provided a response on March 19, 2021, denying access to responsive 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

Chief McNamara SPR21/0812 Page 2 April 13, 2021 records pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). The Department also provided a fee estimate regarding a portion of the request. Unsatisfied with the Department’s response to items 2, 4, 6, 7, and 8 of the request, Ms. Crimaldi petitioned this office and this appeal, SPR21/0812, 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 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 March 19th response In its March 19, 2021 response, the Department states that it possesses “. . . certain police reports, employment materials and other police records responsive to this request. However, the Department asserts that the records are exempt under Exemptions (c) and (f). Items 2, 4, and 6 – Personnel records With respect to items 2, 4, and 6, citing Wakefield, Globe Newspaper Co., and Brogan, the Department states that it “. . . has personnel files and information regarding the officer identified in the request.” However, “. . . such personnel information sought in your Request will be withheld in its entirety pursuant to exemption (c) of the Public Records Law . . .” 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

Chief McNamara SPR21/0812 Page 3 April 13, 2021 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 Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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 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 Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 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. Based on the Department’s response it is unclear what records it is withholding under Exemption (c) and how each of the records constitute “core categories of personnel information” that are “useful in making employment decisions.” See Worcester, 58 Mass. App. Ct. at 5. 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); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify what type of

Chief McNamara SPR21/0812 Page 4 April 13, 2021 record(s) it has in its possession that it withheld from disclosure. Additionally, given the update to the language of Exemption (c) which prohibits its application to records related to a law enforcement misconduct investigation, it is uncertain how this exemption may be used to withhold these records. Items 7 and 8 – emails and text messages With respect to items 7 and 8, the Department asserts that it is withholding responsive records, in their entirety, because “. . . there is an ongoing investigation involving [] such records.” The Department also asserts that “. . . any records related to ongoing investigations requested in any other item(s) of your request shall be withheld under Exemption (f) at this time.” 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 materials 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 ongoing 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. Att’y 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. Based on the Department’s response, it is unclear how the records constitute investigatory materials. Neither is it certain how disclosure of the records or any segregable portion thereof “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these issues.

Chief McNamara SPR21/0812 Page 5 April 13, 2021 Conclusion Accordingly, the Department is ordered to provide Ms. Crimaldi 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: Laura Crimaldi