Todd Wallack v. Danvers, Town of - Town Clerk (SPR 20212078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2078 Catherine S. Ellsworth Town Clerk Town of Danvers One Sylvan Street Danvers, MA 01923 - 2790 Dear Ms. Ellsworth: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Town of Danvers (Town) 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 Danvers 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.” On August 16, 2021, the Town responded. Unsatisfied with the Town’s response, Mr. Wallack petitioned, this office and this appeal, SPR21/2078, 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) (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). 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

Catherine S. Ellsworth SPR21/2078 Page 2 August 31, 2021 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 Town’s August 16th response In its August 16th response, the Town cited Exemption (c) of the Public Records Law to withhold, in their entirety, records responsive to Mr. Wallack’s July 12th request. 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. In its August 16th response, the Town states, “… [e]xemption (c) exempts from disclosure personnel information which is ‘useful in making employment decision regarding an employee.’ Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass.App. Ct. 1, 5 (2003).” The Town states that “… [t]he records that you seek are records of disciplinary action, and are, therefore, exempt under Exemption (c). Id. at 608-09.” The Town further states, “…the

Catherine S. Ellsworth SPR21/2078 Page 3 August 31, 2021 Town is aware that Chapter 253 of the Acts of 2020 amended Exemption (c) such that it no longer applies to ‘records related to a law enforcement misconduct investigation’ this does not apply in this case. The records requested are not documents related to a law enforcement misconduct investigation; rather, the documents relate to employment decision made following the conclusion of the investigation.” 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. The court likewise rejected the argument that the identity of the complainant who initiated the investigation affects the status of the records. The court found that “the competence and integrity of a police force are intrinsically public concerns. That concern endures without regard to the identity of a complainant or inquisitor as either a member of the force or a member of the citizenry.” Id. at 6. Based on the Town’s responses, the issues presented in this appeal appear analogous to that addressed by Justice Sikora in Leeman. The fact that the requested records relate to employment decisions does not distinguish the records from those deemed public in Worcester. Accordingly, the responsive report is not exempt from disclosure under the personnel clause. See Worcester, 58 Mass. App. Ct. at 9 (finding that an internal affairs report and investigative documents fall outside the statutory exemption for “personnel [file] or information”). Therefore, I find that the Town has not met its burden to withhold the responsive report, in its entirety, pursuant to Exemption (c). Conclusion Accordingly, the Town is ordered to provide Mr. Wallack with a response to his 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.

Catherine S. Ellsworth SPR21/2078 Page 4 August 31, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack Rachel Millette, Esq.