Daniel D. Jaffe v. Easton, Town of - Police Department (SPR 20212612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 21, 2021 SPR21/2612 Chief Gary Sullivan Town of Easton Police Department 46 Lothrop Street North Easton, MA 02356 Dear Chief Sullivan: I have received the petition of Daniel Jaffe, of CPCS, appealing the response of the Town of Easton Police Department (Department/Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2021, Mr. Jaffe requested verious records regarding police misconduct. On July 27, 2021, the Department responded and provided an additional response on September 10, 2021. Unsatisfied with the Department’s responses, Mr. Jaffe petitioned this office and this appeal, SPR21/2612, 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(d)(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 27th response In its July 27th response, the Department cited Exemption (c) and Exemption (f) of the Public Records Law to redact the requested records. 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

Chief Gary Sullivan SPR21/2612 Page 2 October 21, 2021 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 July 27th response, the Department stated, “…the Town is withholding the discipline imposed against officers. The Appeals Court addressed this issue in Worcester Telegram & Gazette Corp., v. Chief of Police of Worcester, 58 Mass. App. Ct. 1 (2003), holding that disciplinary records are exempt from disclosure under Exemption (c). The Town acknowledges the recent amendment to Exemption (c), which adds the last proviso regarding law enforcement investigation records. However, this proviso only applies to investigation records indicating that it sought to maintain the distinction between internal affairs records (now amended to apply to all law enforcement investigations) and disciplinary records identified by the Appeals Court in Worcester Telegram & Gazette.” 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 this.

Chief Gary Sullivan SPR21/2612 Page 3 October 21, 2021 As a result, I find that the Department has not met its burden to withhold the requested records under Exemption (c). 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. Under Exemption (f), the Department states, “…pursuant to Exemption (f), the Town is withholding the name of each officer and other such information, including the officer’s identification number and badge number, that would identify the officer. The broad purpose of the recently passed so-called Police Reform Bill, Senate Bill 2963 (2020), is to enhance accountability in law enforcement. This purpose is achieved by, among other things, making available all records of law enforcement investigations and the actions undertaken by the law enforcement agency to address any substantiated complaints. However, disclosure of the names of individual officers is not necessary to achieve this purpose.” While the Department claims it redacted records under Exemption (f), it is unclear how the redacted portions constitute investigatory materials. It is additionally not certain whether the records pertain to an ongoing investigation. Further, the Department did not demonstrate how disclosure of the redacted information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f).

Chief Gary Sullivan SPR21/2612 Page 4 October 21, 2021 Conclusion Accordingly, the Department is ordered to provide Mr. Jaffe 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: Daniel Jaffe Marc L. Terry, Esq.