Laura Crimaldi v. Wellesley, Town of - Police Department (SPR 20211161)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2021 SPR21/1161 Lt. Marie Cleary Wellesley Police Department 485 Washington Street Wellesley, MA 02482 Dear Lt. Cleary: I have received the petition of Laura Crimaldi of the Boston Globe appealing the response of the Wellesley Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 16, 2021, Ms. Crimaldi requested the following records: [1] Employment application for former [named] Wellesley Police Department employee … ; [2] Any and all documents associated with internal affairs cases, complaints, or investigations involving [named employee], including but not limited to internal and citizen complaints, case numbers, allegations, dispositions, outcomes, and discipline; [3]Any and all awards, commendations, and citations issued to [named employee]. The Department responded on May 3, 2021. Unsatisfied with the response, Ms. Crimaldi petitioned this office and SPR21/1161 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Lt. Marie Cleary SPR21/1161 Page 2 May 19, 2021 The Department’s May 3rd response In its May 3rd response, the Department cited Exemption (c) of the Public Records Law. to withhold the requested records. G. L. c. 4, § 7 (26)(c). 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney 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. In its May 3rd response, the Department informed Ms. Crimaldi it “has no records responsive to the second part of your request (internal affairs cases, complaints, etc.). While the Department is in possession of documents responsive to part 1 and part 3 of your request, such documents are not subject to release and have been withheld. G.L. c. 4, §7(26)(c) exempts from disclosure [] personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” The Department explained, “[s]pecifically, the Town is in possession of the Officer’s … employment application and three letters of commendations issued to him. Because these documents are part of the core categories of personnel information protected under Exemption (c), the records are not subject to release.” In the PETA decision, the Supreme Judicial Court (Court) found that “Exemption (c) requires a balancing test: 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 Court further explained that when performing the balancing test “[o]n one side of the scale, we have looked to three factors to assess 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… [o]n the other side of the scale, we have said that the public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner.” PETA, 477 Mass. at 292.

Lt. Marie Cleary SPR21/1161 Page 3 May 19, 2021 Based on the Department response, it is unclear how these records contain intimate details of a highly personal nature nor is it clear how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. As a result, I find that the Department has not met its burden to withhold the requested records under Exemption (c). Order 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 as soon as practicable. 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