Todd Wallack v. Agawam, Town of - Police Department (SPR 20211900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 12, 2021 SPR21/1900 Lieutenant Edward McGovern Town of Agawam Police Department 681 Springfield Street Feeding Hills, MA 01030 Dear Lieutenant McGovern: I have received the petition of Todd Wallack, Deputy Managing Editor of 90.0 WBUR, appealing the response of the Town of Agawam Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, 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. It’s possible the information is already contained in internal affairs logs that you have already provided or plan to provide…Alternatively, we ask that you provide a list of officers who have [been] fired, resigned, or retired as a result of a misconduct investigation or with a pending investigation against them. Or you could instead satisfy this request by providing other records containing this same information, such as the resignation/termination/retirement letters for officers who left during that time period as a result of a misconduct investigation or with a pending investigation against them. 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 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

Lt. Edward McGovern SPR21/1900 Page 2 August 12, 2021 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 July 30, 2021 Response In its July 30th response, the Department cited Exemption (c) to withhold the requested records. Unsatisfied with the Department’s response, Mr. Wallack petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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.

Lt. Edward McGovern SPR21/1900 Page 3 August 12, 2021 In its July 30th response, the Department states, “[a]fter a review of the public records request by our Law Department, it has been determined that the requested records are exempt from public disclosure pursuant to [Exemption (c)]. Personnel records exemption. The request is seeking the names of specific officers who have been terminated or who agreed to resign based on an IA investigation.” The Department posits that this information is useful in making employment decision. The Department is advised, 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 Department must clarify this. As a result, I find that the Department has not met its burden to withhold the requested records under Exemption (c). Order 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