Jeannette Hinkle v. Harwich, Town of - Police Department (SPR 20221539)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2022 SPR22/1539 Kevin M. Considine Deputy Chief of Police Harwich Police Department 183 Sisson Road Harwich, MA 02645 Dear Deputy Chief Considine: I have received the petition of Jeannette Hinkle, of the Cape Cod Times, appealing the response of the Harwich Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 16, 2022, Ms. Hinkle requested: Copies of documents showing the relevant complaints, internal investigations and subsequent findings/ reports related to [6 listed] entries in the POST Commission submission by your department. The Department provided a response on June 28, 2022 denying access to a portion of the responsive records under Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The Department also provided a fee estimate to produce other portions of the records. Unsatisfied with the Department’s response, Ms. Hinkle petitioned this office and this appeal, SPR22/1539, 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 agency or municipality 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 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

Deputy Chief Kevin M. Considine SPR22/1539 Page 2 July 20, 2022 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. 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 Department’s June 28th response In its June 28, 2022 response, the Department states that it is withholding a copy of one of the internal affairs complaints under Exemption (c) of the Public Records Law. With respect to other records, the Department provided a fee estimate of $75.00. In Ms. Hinkle’s petition, she indicates that she is willing to remit the estimated fee. 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). 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).

Deputy Chief Kevin M. Considine SPR22/1539 Page 3 July 20, 2022 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). 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. Under Exemption (c), the Department states that it “. . . has carefully considered the application of Exemption (c) to the internal affairs materials requested, contain details of a highly personal nature, to determine whether disclosure of the information is such that the public’s right to know outweighs any individual(s) privacy rights, and considered the factors set forth in the PETA case . . . In carefully balancing these interests, the [Department] has concluded that it is appropriate to withhold the entirety of the Internal Affairs file under Exemption (c).” The Department explains that “. . . the record at issue contains content of a highly personal nature, including highly sensitive information provided by voluntary complainants and witnesses to the Police Department as part of said investigation regarding materials of a highly personal nature, which is not available from any other sources. Further, the disclosure of the information would result in personal embarrassment to those involved in said investigation who participated in and cooperated with said review. Moreover, based on the contents of the records, the details of such investigation are so inextricably linked that redaction is not possible in this instance without highly sensitive information provided by third-parties, including voluntary witnesses, being publicly disclosed without their authorization or knowledge. Content contained in the documents being withheld from disclosure also contain medical information and other personal information related to specifically named individuals, the disclosure of which would constitute an unwarranted invasion of personal privacy.”

Deputy Chief Kevin M. Considine SPR22/1539 Page 4 July 20, 2022 Subsequently, I learned that the Department provided a further response on July 20, 2022, in which the Department referenced a civil litigation pending in Suffolk Superior Court. See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Comm’n (Superior Court Docket No. 2284CV00906). It is my understanding that the requested records are related to the active and ongoing pending litigation. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Conclusion In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Jeannette Hinkle