Todd Wallack v. Brookline, Town of - Police Department (SPR 20211869)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2021 SPR21/1869 Christopher Tisbert Records Access Officer Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Mr. Tisbert: I have received the petition of Todd Wallack of WBUR appealing the response of the Town of Brookline Police Department (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 15, 2021, Mr. Wallack requested “…the names of sworn officers within the Brookline Police Department who were terminated for misconduct, agreed to resign or retire to resolver misconduct accusations, or resigned or retired with a pending internal affairs investigation since January 1, 2010.” On July 26, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Wallack petitioned this office and this appeal, SPR21/1869, 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(d)(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

Christopher Tisbert SPR21/1869 Page 2 August 11, 2021 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 26th response In its July 26th response the Town cited Exemption (c) of the Public Records Law to withhold the requested records. 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. This clause 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). 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. In its July 26th response, the Town stated “[t]he materials requested constitute the core categories of personnel information useful in making employment decision and are therefore withheld pursuant to exemption (c) of the public records law. See Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000). Specifically Wakefield Teachers explicitly finds ‘personnel [file] or information’ to include disciplinary documentation and termination information pertaining to particular employee. The state legislatures amendment

Christopher Tisbert SPR21/1869 Page 3 August 11, 2021 to the public records law narrows exemption (c) to exclude ‘records related to law enforcement misconduct investigations’ but does not take the disciplinary records for which you seek out of the exemption’s coverage.” Based upon the update to Exemption (c) where the amendment states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be withheld. The Town must clarify this. As a result, I find that the Town has not met its burden to withhold the requested records under Exemption (c). Order Accordingly, the Town is ordered to provide Mr. Wallack 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: Todd Wallack