Todd Wallack v. Hampden County Sheriff's Department (SPR 20211874)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 11, 2021 SPR21/1874 Theresa S. Finnegan, Esq. Hampden County Sheriff’s Department 627 Randall Road Ludlow, MA 01056 Dear Attorney Finnegan: I have received the petition of Todd Wallack of WBUR appealing the response of the Hampden County Sheriff’s 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 “[e]lectronic log of internal affairs complaints/investigations against sworn officers of the Hampden County Jail and House of Correction as far back as [the Department] maintain[s] the log in [its] current computer system.” The Department responded on July 12, 2021, and again on July 30, 2021, providing responsive records in redacted form. Unsatisfied with the Department’s response, Mr. Wallack appealed, and this case 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. 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

Theresa S. Finnegan, Esq. SPR21/1874 Page 2 August 11, 2021 Current Appeal In an email to this office on August 2, 2021, Mr. Wallack clarified his appeal, stating that “to clarify, [he is] only seeking records regarding sworn officers who work in a law enforcement capacity similar to police. [He is] not seeking records on employees who solely act as correctional officers in the county’s jail.” The Department’s Responses In its July 12th and July 30, 2021 responses, the Department provided redacted copies of responsive records, and cited Exemption (c) of the Public Records Law. 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 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).

Theresa S. Finnegan, Esq. SPR21/1874 Page 3 August 11, 2021 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. Under Exemption (c), the Department contends that “the names of those deputy sheriffs whose actions were investigated for actions engaged in off-duty will be protected [from disclosure] under the privacy exemption. The purpose of the new law making it easier to obtain personnel information appears to be targeted to behavior of law enforcement officers acting within the course of their 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 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 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. Based on the Department’s responses, the issues presented in this appeal appear analogous to those addressed by Justice Sikora in Leeman. The fact that the investigations in this case concerned “off-duty” actions does not distinguish the records from those deemed public in Worcester. Accordingly, the responsive reports concerning “actions engaged in off-duty” are not

Theresa S. Finnegan, Esq. SPR21/1874 Page 4 August 11, 2021 exempt from disclosure under the personnel clause. See Worcester, 58 Mass. App. Ct. at 9 (finding that an internal affairs report and investigative documents fall outside the statutory exemption for “personnel [file] or information”). Therefore, I find that the Department has not met its burden to redact the responsive record pursuant to the personnel clause of Exemption (c). Possession, Custody, and Control The Department also contends that recent changes to Exemption (c) “did [not] come into effect until December of 2020.” Based on this contention, the Department claims it was “within [its] rights to have objected based on the personnel/ privacy exemption for” cases prior to 2021. 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 6, 2021, after the recent changes to Exemption (c) took effect. Accordingly, it is unclear how the Department can redact records responsive to Mr. Wallack’s request based on the effective date of the recent changes to Exemption (c). The Department must clarify this. The Department also states that it “would like to work with WBUR to resolve this.” This office encourages both parties to continue communicating in order to resolve any outstanding issues. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack