Frank Wood v. Natick, Town of (SPR 20211862)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2021 SPR21/1862 Kathleen Lentini Town Clerk Town of Natick 13 East Central Street Natick, MA 01760 Dear Ms. Lentini: I have received the petition of Frank Wood of Framingham Forward appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 11, 2021, Mr. Wood requested: “the internal affairs report” relating to an identified police officer in the Town’s Police Department. Prior appeal The requested records pertaining to one of the identified police officers was the subject of a prior appeal. See SPR21/1597 Determination of the Supervisor of Records (Supervisor) (July 13, 2021). Given that it was unclear whether the Town provided a response within ten business days, in my July 13th determination, I ordered the Town to provide a response to Mr. Wood’s request within ten days of my July 13th determination. On July 27, 2021, the Town, through its Legal Counsel Rachel L. (Mills) Millette of Murphy Hesse Toomey & Lehane, LLP, provided a response. In its July 27th response, the Town indicated it withheld the internal affairs investigation report, in its entirety, under Exemption (c) of the Public Records Law. Unsatisfied with the Town’s response, Mr. Wood petitioned the Supervisor, and the current appeal, SPR21/1862, was opened. In his petition, Mr. Wood indicated that the records should be released as they are important to the public because they pertain to a police officer sworn to protect and serve the public. Mr. Wood asserts, “[t]he [T]own is using an exemption stating that the IA file could be used in the future to make employment decisions and therefore cannot be made public.” 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

Kathleen Lentini SPR21/1862 Page 2 August 11, 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) (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). 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 Town’s July 27, 2021 response In its July 27th response, the Town’s Legal Counsel, Rachel L. (Mills) Millette of Murphy Hesse Toomey & Lehane, LLP, states, “[t]he Town is in possession of a record responsive to [Mr. Wood’s] request. However, the record is exempt from disclosure on the basis of Exemption (c) of the Public Records Law. M.G. L. c. 4, § 7(26)(c).” It is the Town’s contention that the report is useful in making employment decisions regarding an employee, and is a core personnel record which was utilized by the Town in making employment decisions. Exemption (c) Exemption (c) permits the withholding of: 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.

Kathleen Lentini SPR21/1862 Page 3 August 11, 2021 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. Noting the recent changes to Exemption (c) pertaining to law enforcement misconduct investigation, such as an internal affairs investigation, the Town asserts, “[f]irst, the record requested was created before December 31, 2020, the effective date of Chapter 253 of the Acts of 2020. In addition, the record is not related to a ‘law enforcement misconduct investigation,’ because the investigation concerned conduct which was not related to [the identified police officers’] law enforcement duties.”’ Internal affairs 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

Kathleen Lentini SPR21/1862 Page 4 August 11, 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. The Appeals Court in Worcester defined the internal affairs process as follows: An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment. Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement. The internal affairs procedure fosters the public’s trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself. A citizenry’s full and fair assessment of a police department’s internal investigation of its officer’s actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights. Id., citing Globe Newspaper Co., 419 Mass. at 866. The Superior Court addressed the application of the Worcester decision to the records of non-criminal Internal Affairs investigations in Leeman v. Cote. 21 Mass.L.Rptr. 411, 2006 WL 2661436 (Mass.Sup.Ct. 2006). In Leeman, the court specifically rejected a police department’s attempt “to distinguish Worcester Telegram on the basis of the identity of the applicant for the file and the absence of issues of theft, bribery, acceptance of gratuities, verbal or physical abuse, unlawful arrest, or harassment.” Id. at 5. The court found that “these considerations may temper the degree of public interest in disclosure of the [records], but they do not qualify the record as a personnel file or personnel information.” Id. The court further stated that “[t]he statutes contain no ‘non-police matter’ exemption.” Id. The court likewise rejected the argument that the identity of the complainant who initiated the investigation affects the status of the records. The court found that “the competence and integrity of a police force are intrinsically public concerns. That concern endures without regard to the identity of a complainant or inquisitor as either a member of the force or a member of the citizenry.” Id. at 6. I find it is unclear how the investigation of one of the Town’s police officers is not an internal affairs investigation under Leeman.

Kathleen Lentini SPR21/1862 Page 5 August 11, 2021 Possession, Custody, and Control Based on the Town’s response, it is unclear if the Town has applied the recent changes in Exemption (c) to all records in its possession, custody, or control; or if the Town has only applied the law to records created since December 31, 2020. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Town received Mr. Wood’s request on June 11, 2021, after the recent changes to Exemption (c) took effect. I find the Town must clarify this. Conclusion Accordingly, the Town is ordered to provide Mr. Wood 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood, Framingham Forward