Steven Connor v. Massachusetts College of Art and Design (SPR 20213385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2022 SPR21/3385 Alisa M. Chapman Records Access Officer (RAO) Massachusetts College of Art and Design 621 Huntington Avenue Boston, MA 02115 Dear Ms. Chapman: I have received the petition of Steven Connor appealing the response of the Massachusetts College of Art and Design (MassArt) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 10, 2021, Mr. Connor requested the: [f]inal investigative report, or memoranda, or documentation representing or constituting a final report, or police internal affairs report, concerning allegations of violations of MassArt's Whistleblower Policy which were reported and outlined on August 5th, 2021 in an email entitled Confidential Disclosure Violations sent by the APA Local Chapter President to the Massachusetts College of Art and Design Human Resources Department. MassArt provided a response on December 28, 2021. Unsatisfied with MassArt’s response, Mr. Connor petitioned this office and this appeal, SPR21/3385, 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); 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 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

Alisa M. Chapman, RAO SPR21/3385 Page 2 January 12, 2022 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. MassArt’s December 28th Response In the December 28, 2021 response, MassArt stated it “denies this request and asserts its right to withhold the record on the basis of exemption (c) of M.G.L c. 4, s. 7(26).” In Mr. Connor’s December 30, 2021 appeal to this office, he stated his request involved “events surrounding the College's employment of a non-qualified individual to work as a sworn police officer, despite being ineligible for appointment as a Special State Police Officer since November 2020, and continuing to allow said individual to work as a police officer until he was removed from this position earlier in December 2021.” 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).

Alisa M. Chapman, RAO SPR21/3385 Page 3 January 12, 2022 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). 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. Disciplinary Records Please note that the courts have contrasted the public status of disciplinary investigation materials of law enforcement personnel from the “ordinary evaluations, performance assessments, and disciplinary determinations” included in the public records exemption for “personnel [file] or information” for other public employees due to the significance of maintaining the transparency of the police department’s internal affairs process. Worcester, 58 Mass. App. Ct. at 2. The Appeals Court reasoned that openness in a police internal affair investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id. at 7-8. 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.

Alisa M. Chapman, RAO SPR21/3385 Page 4 January 12, 2022 In MassArt’s December 28th response, it stated “[t]he College has in its possession an investigative summary responsive to the specific request received. With respect to the first provision of exemption (c) of M.G.L. c. 4, s. 7(26), the exemption addressing personnel information, the report requested provides details relative to disciplinary action taken by the College as well as details related to the assessment of specifically named employees’ job performance. To be clear, the information contained in the report is directly related to employment decisions; specifically, discipline issued. Moreover, redacting the identity of these individuals will not protect the identities of these individuals, particularly given your involvement in the report and your relationship to all of the employees involved.” In addition, MassArt further explained the report requested, “contains the names of complainants and multiple individuals who participated as witnesses in an investigation. Due to the nature of the investigation and the details included in the report, redacting the names of involved employees and witnesses from the report will not be sufficient to protect their identities. Moreover, these individuals will suffer an unwarranted invasion of personal privacy by the release of the report, due to their involvement in the process of the investigation as well as the information they supplied during the investigation. Even more so, the involved parties stand to face personal embarrassment, given the employment actions taken as a result and the details of the report. Finally, the information requested – specifically, the report -- is not currently available from any other source.” Based on the December 28th response, I find MassArt has not met its burden to withhold the report under Exemption (c). Particularly, while portions of the record may fall within an exemption, it is uncertain how the report, in its entirety, constitute intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, upon review of the balancing test, it is unclear how a privacy interest of a government official conducting public business outweighs the public interest in this situation. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Also, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). MassArt must clarify this matter. Conclusion Accordingly, the MassArt is ordered to provide Mr. Connor with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Alisa M. Chapman, RAO SPR21/3385 Page 5 January 12, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Steven Connor