Todd Wallack v. Essex County Sheriff's Department (SPR 20212028)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2021 SPR21/2028 Scott B. Sullivan Assistant Legal Counsel Essex County Sheriff’s Department 20 Manning Avenue P.O. Box 807 Middleton, MA 01949-2807 Dear Attorney Sullivan: I have received the petition of Todd Wallack, Deputy Managing Editor of 90.9 WBUR, appealing the response of the Essex 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 and July 12, 2021, Mr. Wallack requested: 1. Records of sworn officers 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; and, 2. A log of internal affairs complaints/investigations against sworn officers in the Department. Prior appeals The requested records were the subject of prior appeals. See SPR21/1936 and SPR21/1937 Determinations of the Supervisor of Records (Supervisor) (August 2, 2021). I closed the prior appeals due to the Department’s intention to provide a response to the requests. On August 11, 2021, the Department informed Mr. Wallack that it has no log of internal affairs complaints/investigations against sworn officers in the Department. 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). In addition, the Department denied Mr. Wallack’s request for records of sworn officers 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, 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

Scott B. Sullivan, Esq. SPR21/2028 Page 2 August 24, 2021 2010. The Department cites Exemptions (c) and (f) of the Public Records Law to withhold, in their entirety, any records responsive to Mr. Wallack’s July 12th request. Unsatisfied with the response, Mr. Wallack petitioned the Supervisor, and as a result the current appeal was opened. 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 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 August 11, 2021 response In its August 11th response, the Department cited Exemption (c) and (f) of the Public Records Law to withhold, in their entirety, records responsive to Mr. Wallack’ss July 12th request for records of sworn officers 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. 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

Scott B. Sullivan, Esq. SPR21/2028 Page 3 August 24, 2021 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. In its August 11th response, the Department states, “[i]n short, [Mr. Wallack’s] reliance upon the recent provisions of the Act…in support of the proposition that the records are public and no longer fall under [E]xemption (c) is misguided.” It is the Department’s contention the change to Exemption (c) does not apply to any records prior to the effective date of December 31, 2020; therefore, the Department asserts that the records are personnel and disciplinary records under Wakefield. See Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792 (2000). It is also the Department’s contention that the Court’s decision in Worcester does not apply to this request because, “…Worcester dealt with internal investigations regarding police officers in the community who interact with the public on a daily basis. To the contrary, Internal Affairs staff at the Department investigate internal, administrative matters and personnel inquiries of all staff that are administrative in nature. Records responsive to [Mr. Wallack’s] request were not as a result of citizen [c]omplaints of officer misconduct warranting transparency, or anything having to do with the interests of the public at large. Unlike police officers, correction officers are not normally armed nor engaged with the public on the street but rather, work on a daily basis side-by-side with criminal offenders inside the secure facility.” See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003). The Department asserts, the records may also relate to conduct that was not related to the employees’ job duties and functions, but rather actions taken while off-duty. 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

Scott B. Sullivan, Esq. SPR21/2028 Page 4 August 24, 2021 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. It is your contention that Chapter 253 of the Acts of 2020 also does not apply because the records requested were created before December 31, 2020, the effective date of the Act. “The Department construes your request as being limited to law enforcement officers performing police duties and functions from January 1, 2021 forward…without waiving its objections, I am informed that the Department does not have any records responsive to [records dated January 1, 2020 forward].” In his August 11th petition, Mr. Wallack stated, “…just to clarify for the [Department], we are only seeking records regarding sworn officers who act in a law enforcement capacity, not correctional officers.” In a conversation with an attorney in the Public Records Division, you indicated that while the Department searched for records from January 1, 2021, the Department has not conducted a search for any records responsive to the July 12th request from January 1, 2010 through January 1, 2021. The Department must clarify what records are in their possession that are responsive to Mr. Wallack’s July 12th request. The Department received Mr. Wallack’s request on July 12, 2021, after the recent changes to Exemption (c) took effect. 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. As a result, I find that the Department has not met its burden to withhold the requested records under Exemption (c). Exemption (f) The Department also claims that the records may be withheld, in their entirety, under Exemption (f).

Scott B. Sullivan, Esq. SPR21/2028 Page 5 August 24, 2021 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 Department argues that “…the very foundation and premise of the Department’s administrative Internal Affairs inquiries is one of confidentiality. In fact, that is exactly what parties and witnesses are advised by investigators during the course of the investigation. In so doing, employees of the Department are both encouraged, and can feel free to bring forward complaints involving sensitive allegations without fear of retaliation.” Further, the Department asserts, “[i]n essence, you would be lifting the curtain as to how internal investigations which take place in a closed work environment at the jail are conducted.”

Scott B. Sullivan, Esq. SPR21/2028 Page 6 August 24, 2021 In his August 11th petition, Mr. Wallack asserts, “I have no objections to removing the names of complainants and non-employee witnesses. However, the names of state employees in government reports should generally be public. Moreover, there is no basis for using Exemption (f) to withhold the records in their entirety.” I find that the Department has not met its burden to withhold the records in their entirety, under Exemption (f). Burden of Specificity in Claiming Exemptions; Duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. - - - - v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See 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 Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under the exemptions. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records responsive to Mr. Wallack’s July 12th request. Therefore, the Department must identify how many and what type of record(s) it has in its possession that the Department withheld. 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, WBUR 90.9