Robert K v. Massachusetts Department of State Police (SPR 20212358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2021 SPR21/2358 Allison E. Hynes, Esq. Staff Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: I have received the petition of Robert K appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 22, 2021, the requestor sought the “. . . personnel file of [named Officer] of the Massachusetts State Police including, but not limited to, promotions, demotions, salary, disciplinary action against [named Officer], complaints, compliments, background check and criminal record, if any.” Previous appeals The request was the subject of previous appeals. See SPR21/2031 Determination of the Supervisor of Records (August 17, 2021) and SPR21/2121 Determination of the Supervisor of Records (September 3, 2021). In my September 3rd determination, I found the Department had not met its burden of specificity in withholding records under Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). Accordingly, the Department was ordered to provide the requestor with a response. Subsequently, the Department provided a supplemental response on September 14, 2021. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR21/2358, 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

Allison Hynes, Esq. SPR21/2358 Page 2 September 28, 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. The Department’s September 14th response In its September 14, 2021 response, the Department claims Exemptions (c) and (f) to withhold responsive records from disclosure. Exemption (c) Exemption (c) permits the withholding of: 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. 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). 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).

Allison Hynes, Esq. SPR21/2358 Page 3 September 28, 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; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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. Under Exemption (c), the Department indicates “. . . that Department personnel files include the following records and information: the application folder (application, medical release forms, fingerprint cards, physical agility test forms, and/or medical clearance for retention physical forms), the benefits folder (employee insurance forms, beneficiary forms and new member enrollment forms, leave request memos, and/or policy acknowledgement forms), the background folder (records containing application background investigation information) as well as other miscellaneous information of a highly personal nature (records related to injuries, Quinn Bill benefits, military information, and/or memos and correspondence related to personnel information). Thus, the Department asserts that [named officer’s] entire personnel file is exempt from public disclosure.” Based on the Department’s response, it is unclear how all the records constitute core categories of personnel information or contain intimate details of a highly personal nature. It is additionally uncertain how disclosure of the records would result in personal embarrassment to an individual of normal sensibilities or whether any of the information is available from other sources. See PETA, 477 Mass. at 292. Further, the Department’s response does not address the balancing test outlined in PETA. Id at 291. The Department must clarify these matters. 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

Allison Hynes, Esq. SPR21/2358 Page 4 September 28, 2021 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. Under Exemption (f), the Department states that the named officer “. . . has been the subject of one internal affairs investigation and that investigation is an on-going investigation.” Citing Bougas, the Department posits, “. . . the fact-finding process occurs through the interviews of witnesses and the investigator’s conclusions as to the facts of the investigation may change and evolve as this process occurs. The Department asserts that until this investigation is completed any facts found by investigators are ‘interim conclusions’ and may change as the investigation progresses and as records related to the investigation are obtained.” The Department contends, “[t]he disclosure of any information related to this investigation prior to its completion would prejudice the investigation as it would place facts that have not been officially ‘found’ into the public realm. Therefore, the release of any information at this point would not be in the public interest as this information is subject to change. In addition, the release of this information may have an impact on prospective witnesses willingness to cooperate with investigators.” To the extent the disclosure of the records would prejudice an ongoing investigation, the Department may permissibly withhold those responsive records from disclosure under Exemption (f) at this time. Please be aware that a change in the status of the investigation could impact the applicability of Exemption (f). Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Robert K