Patrick N. Bryant v. Revere, City of - Police Department (SPR 20211117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 17, 2021 SPR21/1117 Captain Michelle Mangino Records Access Officer (RAO) Bureau of Administration, Commander Revere Police Department 400 Revere Beach Blvd Revere, MA 02151 Dear Captain Mangino: I have received the petition of Attorney Patrick Bryant appealing the response of the Revere Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Attorney Bryant requested “all documents pertaining to allegations against current Chief . . . when he was a lieutenant that resulted in a settlement with the complainant.” The records requested included “all notes, emails, reports, interviews regarding the allegations, discussion of the allegations, the investigation of the allegations, and the settlement of the allegations.” Previous appeal This request was the subject of a previous appeal. See SPR21/0918 Determination of the Supervisor of Records (April 26, 2021). SPR21/0918 was closed after this office was notified that the Department responded to Attorney Bryant’s request with a further response sent on April 26, 2021. Unsatisfied with the Department’s response, Mr. Bryant petitioned this office and this appeal, SPR21/117, 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). 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 Michelle Mangino SPR21/1117 Page 2 May 17, 2021 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 April 26th Response In its April 26, 2021 response, the Department listed that the documents being withheld were the “original 2016 Complaint;” “email exchanges between labor counsel and various parties, including client, opposing counsel;” and the “settlement with the complaining officer in the 2016 complaint.” The Department explained that there was “one complaint presented by an officer of the Revere Police Department (RPD), in May, 2016, that did not make any allegation involving a law enforcement function. That matter is being withheld under the Personnel exemption of the Public Records Law [see, Clause 26th, of GL c. 4, Section 7 (c)]. Its release would constitute an unwarranted invasion of personal privacy that is not related to a law enforcement investigation.” The Department also claimed that the “information request under review here, therefore, is a dispute that should be addressed within the discipline and appeal process pursuant to Civil Service law, and/or through the grievance and arbitration procedure set forth in the collective bargaining agreement between the City and the Union, rather than be subject to the current appeal.” Lastly, the Department ,referring to the withheld email exchanges, stated the “records referred to are not a part of any pubic record, per se. Rather they are email exchanges between outside labor counsel and the client, and/or the attorney for the complaining officer, and/or counsel for [the Chief] which are preserved on thumb drives. All of the communications reviewed thus far fall under attorney client privilege, work-product, and/or settlement discussion exclusions.” 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).

Captain Michelle Mangino SPR21/1117 Page 3 May 17, 2021 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. In the April 26, 2021 response, the Department cites a statute relating to the Civil Service Commission, pursuant to G .L. c. 31, Section 41 claiming records can be obtained through the discovery process involving “a full hearing before the appointing authority or his or her designee. See, G.L. c. 31 Sections 41.” The Department explains the “disciplinary case will be scheduled for a full appointing authority hearing, subject to de novo review, upon appeal, by the Civil Service Commission or by an arbitrator under the Grievance and Arbitration procedure set forth in the collective bargaining agreement (CBA) between the Revere Patrol Union and the City of Revere.” The Department indicates that “in the event the officer currently facing discipline, a tenured civil service employee, is dissatisfied with the result of the appointing authority hearing an appeal may be made to either the Civil Service Commission, pursuant to G .L. c. 31, Section 41 or may be heard and decided by an arbitrator, by way of demand for arbitration, in lieu of a Civil Service appeal, pursuant to the collective bargaining agreement between the City and the Patrol Union.” The Department believes “[a]ny discovery dispute or request for information should be sorted out by the commissioner or arbitrator to whom this case may ultimately be assigned.” In a supplemental response provided to this office on May 17, 2021, the Department states that Attorney Bryant “will have a de novo appeal to either [the] Civil Service Commission, pursuant to G.L. c. 31 Sections 41-45, or to an arbitrator, pursuant to the collective bargaining agreement between the City and the Revere Patrol Officer's Union. The hearing officer at that de novo appeal, be it a Civil Service Commissioner or an arbitrator, will have full subpoena power to address any discovery disputes and/or admissibility of evidence determinations.” Based on the Department’s responses, it is unclear how the cited statute permits it to withhold the records from disclosure. Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Department cites G. L. c. 31, § 41, it remains unclear how the

Captain Michelle Mangino SPR21/1117 Page 4 May 17, 2021 statute specifically or by necessary implication permits it to withhold the requested records from disclosure. 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). 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). Police Disciplinary Records Please note that the courts have contrasted the public status of disciplinary investigation 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

Captain Michelle Mangino SPR21/1117 Page 5 May 17, 2021 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. In its April 26th response, the Department explained that the withheld “statements cannot be revealed without putting them into context -which would necessarily include the invasion of the personal privacy of both participants in the exchange, including the highly personal statements of the complaining officer - and it is not warranted.” In reference to the Worcester case, the Department explained that “[t]he single complaint against [the Chief] -brought forward by a fellow RPD Officer - had nothing whatever to do with police corruption or any official police contact between the police and the citizenry. It was a complaint about a personal exchange that took place between officers at the police station and out of view of the public.” In the May 17th supplemental response the Department claims that “[i]t cannot be overlooked that the aim of the Legislature was to address police corruption and to facilitate public disclosure of information regarding claims of police corruption and claims of misconduct in the terms of police interaction with the public. It was not intended to address internal squabbles.” The Department explained in the supplemental response that “[i]f any misconduct by a police officer can be considered ‘law enforcement misconduct,’ then there would be no need to distinguish ‘law enforcement’ misconduct from any other form of misconduct. That the Legislature saw fit to do so matters. It is a clear recognition that police officers, like other non-law enforcement personnel, may engage in misconduct that is not endemic to employment as a police officer. The City submits that relations between employees, among themselves, that do not involve a police enforcement function, or relate to police corruption in any way, continue to be exempt. The language of the statute clearly recognizes a distinction between ‘law enforcement misconduct’ and other forms of misconduct unrelated to employment as a police officer. There is no other possible explanation for the inclusion of those words.” Lastly the Department states that the “amendment was clearly intended to be limited to misconduct while engaged in a law enforcement function as distinguished from other forms of misconduct such as tardiness, sick leave abuse, rudeness and harassment (not involving contact with the public), and disputes among co-workers outside the scope of a law enforcement function.” Given that the current language of Exemption (c) prohibits its application to records related to law enforcement misconduct investigations, it is unclear how this exemption may be used to withhold the responsive records regarding a law enforcement misconduct investigation made by the Department. The Department must further clarify this.

Captain Michelle Mangino SPR21/1117 Page 6 May 17, 2021 Common law attorney-client privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); -se-e -al-so- -H-a-no-v-e-r -In-s-. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). The Department claimed attorney-client privilege for the withholding of email exchanges between “outside labor counsel and the client, and/or the attorney for the complaining officer, and/or counsel for [the Chief].” The Department is advised that G. L. c. 66, § 10A(a) requires that a records custodian must provide a privilege log in accordance with the Public Records Law. The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. The Department must provide a privilege log and further explain how the above cited communication constitutes attorney-client privileged communication. Conclusion Accordingly, the Department is ordered to provide Attorney Bryant 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.

Captain Michelle Mangino SPR21/1117 Page 7 May 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Bryant Matthew J. Buckley