Todd Wallack v. Lexington, Town of - Police Department (SPR 20211981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2021 SPR21/1981 Michael McLean Chief of Police Lexington Police Department 1575 Massachusetts Ave Lexington, MA 02420 Dear Chief McLean: I have received the petition of Todd Wallack of WBUR appealing the response of the Lexington 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 12, 2021, Mr. Wallack requested, “[d]ocuments showing the names of sworn officers within the Lexington Police 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.” Prior Appeal The requested records were the subject of a prior appeal. See SPR21/1950 Determination of the Supervisor of Records (August 11, 2021). The Department provided a response on August 5, 2021. Unsatisfied with the Department’s response, Mr. Wallack petitioned this office and this appeal, SPR21/1981, 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

Michael McLean SPR21/1981 Page 2 August 19, 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. The Department’s August 5th response In its August 5th response the Department stated that the requested records could be withheld pursuant to Exemption (c). 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. 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 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). 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 August 5th response, the Department states, “…records regarding employee terminations, resignations or retirements in response, or in the midst of, disciplinary

Michael McLean SPR21/1981 Page 3 August 19, 2021 investigations, are personnel records that remain protected from disclosure under G.L. c. 4, § 7 cl. 26(c) (as amended in 2020), the personnel exemption to the Public Records Law. As the Court determined in Wakefield Teachers Ass’n v. School Committee of Wakefield, 431 Mass. 792, 798 (2000), the term ‘personnel files or information’ ‘includes, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion or termination information pertaining to a particular employee’. The Court further stated that these are the ‘core categories’ of personnel information that are useful in making employment decisions regarding an employee and, therefore, such information is exempt from disclosure.” The Department further asserted, “…there are no records regarding a termination, and no records in which an officer acknowledges they resigned or retired because of a pending investigation or where the Town or any third party states that this is the case. There are records involving the resignation or retirement of an officer who also was the subject of an investigation…” 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 his 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. Mr. Wallack may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack Mina S. Makarious, Esq.