Todd Wallack v. Barnstable, Town of - Police Department (SPR 20211868)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 10, 2021 SPR21/1868 Kathleen I. Hinckley Records Access Officer Town of Barnstable Police Department P.O. Box B Hyannis, MA 02601 Dear Ms. Hinckley: I have received the petition of Todd Wallack, Deputy Managing Editor of 90.0 WBUR, appealing the response of the Town of Barnstable Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2021, Mr. Wallack requested an electronic log of internal affairs complaints/investigations against sworn officers of the Department. The Department provided Mr. Wallack with those records on July 21, 2021. On July 12, 2021, Mr. Wallack requested: Documents showing the names of sworn officers within the [Department] who were terminated for misconduct, agreed to resign or retire to resolve misconduct accusations, or resigned or retired with a pending internal affairs investigation since January 1, 2010. The Department responded on July 27, 2021, indicating that it was withholding the records responsive to Mr. Wallack’s July 12th request pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Department’s July 27th response, Mr. Wallack petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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 I. Hinckley SPR21/1868 Page 2 August 10, 2021 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 Department’s August 2, 2021 response In its August 2nd response to this appeal, the Department’s attorney, Karen L. Nober, cites Exemption (c) of the Public Records Law, claiming, “I am informed that the Department’s internal affairs investigation reports for the specified time period do not contain disciplinary information, including any of the information Mr. Wallack was seeking. Therefore, those reports were not responsive to Mr. Wallack’s request. And, while we agree with Mr. Wallack that internal affairs investigation reports are public records, he did not request copies of such reports.” 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. 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

Kathleen I. Hinckley SPR21/1868 Page 3 August 10, 2021 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), the Department states: “…if the Department’s internal affairs reports did contain the information Mr. Wallack was seeking, we understand that we would have to produce those reports and would not be able to redact or withhold such information pursuant to [E]xemption (c). But as noted [in this response], the Department’s internal investigation reports do not contain this information. To the extent that the Department has other records that contain the information Mr. Wallack is seeking, those records do not relate to a law enforcement investigation, but rather, relate to employment decisions made after the conclusion of the investigation. Accordingly, such records are personnel records that are protected from disclosure.” The Department cites Wakefield, 431 Mass. 792, 798, as applicable to this request. Possession, Custody, and Control Based on the Department’s August 2nd response, it is unclear if the Department has applied the recent changes in Exemption (c) to all records in its possession, custody, or control; or if the Department 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 Department received Mr. Wallack’s request on July 12, 2021, after the recent changes to Exemption (c) took effect. Consequently, it is unclear whether the Department possesses records responsive to Mr. Wallack’s request. The Department must clarify this.

Kathleen I. Hinckley SPR21/1868 Page 4 August 10, 2021 Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the request, 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: Todd Wallack, 90.0 WBUR