Laura Crimaldi v. Stoughton, Town of - Police Department (SPR 20211220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 27, 2021 SPR21/1220 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. 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 Donna McNamara SPR21/1220 Page 2 May 27, 2021 Previous appeal This request was the subject of a previous appeal. See SPR21/0812 Determination of the Supervisor of Records (April 13, 2021). In my April 13th determination, I found the Department had not met its burden to withhold records responsive to Items 2, 4, 6, 7, and 8, under Exemptions (c) and (f) of the Public Records Law. Accordingly, I ordered the Department to provide Ms. Crimaldi with a response. Subsequently, the Department provided responses on April 28, 2021 and May 6, 2021. Unsatisfied with the Department’s responses, Ms. Crimaldi petitioned this office and this appeal, SPR21/1220, 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 April 28th and May 6th responses In its April 28, 2021 and May 6, 2021 responses, the Department provided records responsive to Items 1 through 5 in redacted form. The Department redacted portions of the records under Exemptions (a), (c), and (f). The Department also withheld records responsive to Items 7 and 8 under Exemption (f). Items 1 and 3 In her appeal petition, Ms. Crimaldi states, “[t]he Department also states that it redacted ‘the names of voluntary witnesses and complainants’ pursuant to Exemption (f). Citing Reinstein, 378 Mass. at 290, the Department claims that the exemption ‘permits the permanent withholding of any details that would tend to identify complainant and voluntary witnesses, even those instances where an investigation has concluded.’ But Reinstein does not stand for the proposition that the identity of any person interviewed by police, under any circumstances, is

Chief Donna McNamara SPR21/1220 Page 3 May 27, 2021 exempt from disclosure. I respectfully request that the Supervisor order the Department to remove these redactions, or to clarify specifically why Exemption (c) [sic] permits it to make these redactions.” 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Department states that it “. . . has made redactions to the enclosed police reports to protect the names of private individuals who provided information to police voluntarily as part of its investigations, requests for assistance and/or calls for public safety response. Redactions in this instance to the identities of private individuals are appropriate

Chief Donna McNamara SPR21/1220 Page 4 May 27, 2021 to preserve the anonymity of voluntary complainants and witnesses who cooperated with police during such matters.” Based on the Department’s response, to the extent that the Department redacted the identities of voluntary witnesses and complainants, I find the Department may permissibly withhold those portions from disclosure under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (discussing the appropriateness of redacting the identities of voluntary witnesses). Item 2 In her appeal petition, Ms. Crimaldi states, “. . . the Department provided records responsive to Items 2, 4, and 6, with redactions. The Department redacted [the identified individual’s] employment application (Item 2), stating that it ‘redacted personal and private information contained’ in the application. The Department does not explain how application information is of such a ‘highly personal’ nature that Exemption (c) permits those redactions.” 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 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:

Chief Donna McNamara SPR21/1220 Page 5 May 27, 2021 (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. Regarding Item 2, the Department indicates that it has “. . . redacted specific personal information contained in the 2010 employment application that does not relate to [the identified individual’s] current or prior employment with the Police Department, his professional qualifications or work history.” The Department posits that “[u]pon balancing the privacy factors referenced above, after analyzing the record, the [Department] has redacted certain personal background information contained in the application which facilitated the [Department’s] ability to conduct a pre-employment background check. Specifically, redactions have been made to the enclosed application to the background information regarding his personal life, including marital status, personal and familial life, credit and financial history, criminal history questionnaire responses, specific license plate information, alcohol/drug history questions and gambling history inquiry, as well as the names and identifying information of private third- parties contained in the application.” The Department asserts, “[t]he redacted information regarding an individual’s personal, familial and private conduct/information contains intimate details of a highly personal nature, i.e. the private, non-work related conduct of a specifically named individual, the identity of which is known to you. . . . The employment application, employment citations and police reports have been redacted, in light of the privacy interests at stake.” The Department explains, “[s] uch records contain certain information potentially affecting the privacy interests of third-parties as well as personal information and familial matters regarding [the identified individual]. The nature of this information is such that the [Department] believes public disclosure of the redacted information would result in personal embarrassment to individuals of normal sensibilities and contains personal details of a highly intimate nature.” Based on the Department’s response, to the extent that the Department redacted information regarding the identified individual’s marital status, familial life, credit and financial history, or medical information, I find the Department may permissibly withhold such portions

Chief Donna McNamara SPR21/1220 Page 6 May 27, 2021 from disclosure under Exemption (c). However, it is unclear why the Department may redact the specific license plate information and criminal history questionnaire responses of the identified individual under Exemption (c). Items 7 and 8 In its April 28, 2021 response, the Department states that the responsive records “. . . pertain directly to an ongoing, active law enforcement investigation being conducted by Norfolk County District Attorney’s Office and Massachusetts State Police, as well as an internal affairs police investigation currently being conducted by the Stoughton Police Department. . . .” The Department explains that “. . . disclosure of these specific records at this time related to active police investigations would directly jeopardize the investigations and prejudice the possibility of effective law enforcement investigations in this matter since the records relate to specifically identified individuals, the identities of which are known to you.” The Department asserts, “. . . redaction is not possible since the identity of the individuals is known to you as set forth in the public records request and the disclosure of which could alert individuals as to the nature and scope of the investigations. As such, the disclosure of these particular records may . . . compromise these two ongoing investigations.” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to redact and withhold records responsive to Items 2, 7, and 8, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. 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 office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. 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

Chief Donna McNamara SPR21/1220 Page 7 May 27, 2021 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. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Crimaldi Janelle Austin, Esq.