Todd Wallack v. Bristol County Jail & House of Correction (SPR 20211995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 20, 2021 SPR21/1995 Lorraine J. Rousseau, Esq. Bristol County Sheriff’s Office 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Todd Wallack of WBUR appealing the response of the Bristol 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 6, 2021, Mr. Wallack requested an “[e]lectronic log of internal affairs complaints/investigations against sworn officers of the Bristol County Jail and House of Correction as far back as [the Office] maintain[s] the log in [its] current computer system.” On July 13, 2021, Mr. Wallack requested “[d]ocuments showing the names of sworn officers within the Bristol 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.” Previous Appeals This request was the subject of previous appeals. See SPR21/1913 Supervisor of Records Determination (August 5, 2021) and SPR21/1914 Supervisor of Records Determination (August 5, 2021). In my August 5th determinations, I closed SPR21/1913 and SPR21/1914 based on the Office’s August 4, 2021 response to both requests. 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). 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

Lorraine J. Rousseau, Esq. SPR21/1995 Page 2 August 20, 2021 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. Current Appeal In his appeal petition Mr. Wallack makes the following clarifications: 1) Although [he] requested an electronic copy of the agency’s internal affairs log, [he] would gladly accept paper copies of the document if that is the only format available. 2) [He is] only seeking records related to sworn officers who operate in a law enforcement capacity, not correctional officers assigned to the county jail. Regarding the Office’s Exemption (c) claim, Mr. Wallack contends that “[i]n this case, it appears the resignations/retirements were related to the misconduct investigations.” Further, he contends that “the Legislature recently directed the new POST Commission to create a public database with similar information about police officers, including ‘the date of any separation from employment with an agency and the nature of the separation, including, but not limited to, suspension, resignation, retirement or termination.’ . . . That suggests the Legislature intended all terminations, suspensions, retirements, terminations of police officers to be made public.” Regarding the Office’s Exemption (f) claim, Mr. Wallack contends that “[i]n this case, the agency has asserted that the documents contain the names of employee witnesses. First of all, government employees are not confidential informants. They are expected to cooperate with investigations as part of their job duties.” Additionally, he argues that “even if the information did fall under exemption (f), the agency could easily redact the names and release the rest of the documents.” The Office’s August 4th Response In its letter to Mr. Wallack on August 4, 2021, the Office states that “[w]ith regard to the first request, [the Office has] no such electronic log.” The Office explains that “unlike a municipal police department, a sheriff’s office receives few citizen complaints resulting in investigation.” With regard to the second request, the Office states that “compiling such a log would require an examination of any available personnel files of every current and former ‘sworn officer’ ever employed at the Bristol County Jail and House of Correction. It would be

Lorraine J. Rousseau, Esq. SPR21/1995 Page 3 August 20, 2021 difficult and extremely time-consuming to compile an accurate estimate to such an open-ended request.” Regarding both requests, the Office claims it may withhold responsive records pursuant to Exemptions (c) and (f) of the Public Records Law. 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. Under Exemption (c), the Office argues that “the Legislature considered sheriffs’ departments ‘law enforcement agencies’ only so far as to when they were performing ‘police duties and functions’ such as a deputy sheriff appointed under Chapter 37 or a constable executing an arrest. Accordingly, correctional functions are not considered ‘law enforcement’ by the Legislature. Therefore, the exclusion found in exemption (c) of the public records law does not apply to correctional facilities.”

Lorraine J. Rousseau, Esq. SPR21/1995 Page 4 August 20, 2021 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants, and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Office argues that “[t]he documents requested arise out of internal employment investigations. Most contain the names and information of employees who have cooperated with the employer in investigating workplace misconduct. The disclosure of the names of such employees making them available to other employees would serve to expose such disclosers to potential harm by their co-workers and insure the inability of the employer to ever obtain future cooperation by employee informants. Moreover, as courts have noted to protect the identity of employees and prevent any retaliation, this exception continues even after the

Lorraine J. Rousseau, Esq. SPR21/1995 Page 5 August 20, 2021 investigation is complete.” Burden of Specificity in Claiming Exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv). Further, the 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.” See Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory - - - - - exemptions are narrowly construed and are not blanket in nature). The Office’s response did not contain the specificity required in a denial of access to public records. The Office did not identify the records in its possession that it intends to withhold from disclosure. The Office first appears to claim it has no responsive records, and then goes on to cite Exemptions (c) and (f) of the Public Records Law. Based on the Office’s response, and in light of the clarifications provided by Mr. Wallack, it is unclear whether the Office is withholding records pursuant to Exemptions (c) and (f), or whether responsive records do not exist. The Office must clarify these matters. 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 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