Frank Wood v. Natick, Town of (SPR 20212193)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 9, 2021 SPR21/2193 Kathleen Lentini Town Clerk Town of Natick 13 East Central Street Natick, MA 01760 Dear Ms. Lentini: I have received the petition of Frank Wood appealing the response of the Town of Natick (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 11, 2021, Mr. Wood requested the internal affairs report from an investigation conducted of an identified Town police officer. Prior appeals Receiving no response to his June 11th request within ten (10) business days, Mr. Wood petitioned the Supervisor of Records (Supervisor), and appeal SPR21/1597 was opened. Given that it was unclear whether the Town provided a response within ten business days, in my July 13, 2021 determination, I ordered the Town to provide a response to Mr. Wood’s request within ten days. See SPR21/1597 Determination of the Supervisor (July 13, 2021). On July 27, 2021, the Town provided a response. In its July 27th response, the Town indicated it withheld the internal affairs investigation report, in its entirety, under Exemption (c) of the Public Records Law. The Town asserts, “[i]t is [its] contention that the report is useful in making employment decisions regarding an employee, and is a core personnel record which was utilized by the Town in making employment decisions.” Unsatisfied with the Town’s July 27th response, Mr. Wood petitioned the Supervisor, and SPR21/1862, was opened. In my August 11, 2021 determination, I found that the Town did not meet its burden to withhold the internal affairs investigation record, and I ordered the Town to provide Mr. Wood with a further response. In its August 26th response, the Town not only continues to withhold the report under Exemption (c), but has also claimed Exemption (f). The August 26th letter asserts, “[s]ince the Town’s initial response to [Mr. Wood’s] request, the Town has become aware that the criminal investigation of the subject of the investigation has not been closed. Disclosure of the report may 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 Lentini SPR21/2193 Page 2 September 9, 2021 prejudice any potential criminal proceedings in this matter.” Therefore, the Town is withholding the report under both Exemptions (c) and (f). Unsatisfied with the Town’s August 26th response, Mr. Wood petitioned the Supervisor, and 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). 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. 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. 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).

Kathleen Lentini SPR21/2193 Page 3 September 9, 2021 The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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. 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, 371 Mass at 62. 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. The Town’s August 26th response did not demonstrate how disclosure of even a redacted report “would so prejudice the possibly of effective law enforcement.” Nor, has the Town demonstrated how the report, even in a redacted manner, “may prejudice any potential criminal proceedings in this matter.” I find the Town has not met its burden of specificity to withhold the report, in its entirety, under Exemption (f). In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) and Exemption (f) claims made by the Town to withhold the report, the Town must provide this

Kathleen Lentini SPR21/2193 Page 4 September 9, 2021 office with an un-redacted copy of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Town’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, the Town may provide a cover letter with its submission of the record for in camera inspection; however, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with an un-redacted copy of the withheld report for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Wood