Todd Wallack v. Worcester County Sheriff's Office (SPR 20211875)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2021 SPR21/1875 Kevin M. Gould, Esq. General Counsel Worcester County Sheriff’s Office 5 Paul X. Tivnan Drive West Boylston, MA 01583 Dear Attorney Gould: I have received the petition of Todd Wallack of WBUR appealing the response of the Worcester County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 12, 2021, Mr. Wallack requested: Documents showing the names of sworn officers within the Worcester County Jail and House of Correction 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 Office responded on July 26, 2021, indicating that it was withholding some records pursuant to Exemption (c) of the Public Records Law, and that other records did not exist. Unsatisfied with the Office’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 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

Kevin M. Gould, Esq. SPR21/1875 Page 2 August 6, 2021 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. 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 Office’s July 26th Response In its July 26, 2021 response, the Office cites Exemption (c) of the Public Records Law, and claims it has no records responsive to Mr. Wallack’s request. 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).

Kevin M. Gould, Esq. SPR21/1875 Page 3 August 6, 2021 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 Office states: That deputy sheriffs “appointed to section 3 of said chapter 37 performing police duties and functions” fall within the definition of a law enforcement officer, and, accordingly, the recent changes to the state public records law are applicable to those individuals. To the extent [Mr. Wallack’s] request seeks termination/resignation records for misconduct investigations of deputy sheriffs . . . in the course of the performance of police duties and functions, the [Office] has no responsive records to that request. Possession, Custody, and Control Based on the Office’s response, it is unclear if the Office has applied the recent changes in Exemption (c) to all records in its possession, custody, or control; or if the Office 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 Office received Mr. Wallack’s request on July 12, 2021, after the recent changes to Exemption (c) took effect. Accordingly, it is unclear whether the Office possesses records responsive to Mr. Wallack’s request. The Office must clarify this. Conclusion Accordingly, the Office 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

Kevin M. Gould, Esq. SPR21/1875 Page 4 August 6, 2021 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, .n 11~~~- ~ e r 1W'.JU.,CQ.. c_ Rebecca S. Murray Supervisor of Records cc: Todd Wallack