Jeannette Hinkle v. Barnstable, Town of - Police Department (SPR 20212065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2021 SPR21/2065 Kathleen I. Hinckley Barnstable Police Department 1200 Phinneys Lane Hyannis, MA 02601 Dear Ms. Hinckley: I have received the petition of Jeannette Hinkle of the Cape Cod Times appealing the response of the Barnstable Police Department (Department) to her request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On June 1, 2021, Ms. Hinkle requested: [1] Copies of all … Department records showing complaints made against [named person] by police officers and/or members of the public during … employment with BPD; [2] Copies of all … Department records showing internal investigations by BPD of … during … employment with BPD, including but not limited to the findings of any investigations; [3] Copies of all … Department records showing disciplinary action taken by Barnstable Police Department against [named person] during … employment with BPD, including but not limited to verbal and/or written reprimands; [4] Department records indicating the reason for [named person]’s departure from BPD, including but not limited to emails between … and BPD staff. The Department responded on July 6, 2021. Unsatisfied with the response, Ms. Hinkle petitioned this office and this appeal, SPR21/2065, 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

Kathleen I. Hinckley SPR21/2065 Page 2 August 30, 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) (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). The Department’s July 6th response In its July 6, 2021 response, the Department cited Exemptions (c) and (f) of the Public Records Law to redact portions of the requested records and/or withhold the record in its entirety. G. L. c. 4, § 7(26)(c), (f). 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). 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). 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. 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

Kathleen I. Hinckley SPR21/2065 Page 3 August 30, 2021 Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is 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. 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. Att’y 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. Bougas 371 Mass 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 law enforcement agencies 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. In its response, the Department produced copies of the complaints requested in number 1 with redactions. Redactions were made to include complainant, witness and juvenile names,

Kathleen I. Hinckley SPR21/2065 Page 4 August 30, 2021 addresses, and telephone numbers. The Department stated in part, it withheld one complaint under Exemption (c) made by other police officers because, “[t]he withheld record relates solely to allegations of conduct by and between police officers that had no bearing on the [named officer] duties ... [and] the record is not related to a law enforcement misconduct investigation.” The Department also produced internal investigations requested in number 2, however, the Department stated it withheld “… two internal investigations arising from conduct by and between police officers that has no bearing on the [named officer] duties ...” With regard to requests 3 and 4, the Department withheld the requested records under Exemption (c) as personnel records. Based on the Department’s response, it is unclear what records the Department possesses that it withheld from disclosure under Exemption (c). The Department must identify what records it has in its possession, custody or control that are responsive to Ms. Hinkle’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 2.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). It is additionally uncertain how the records constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Nor has the Department indicated whether any responsive information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Further, 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 these issues. With respect to Exemption (f), I find the Department may permissibly redact identifying information regarding voluntary witnesses and complainant(s). Order Accordingly, the Department is ordered to provide Jeannette Hinkle 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.

Kathleen I. Hinckley SPR21/2065 Page 5 August 30, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jeannette Hinkle