Jeannette Hinkle v. Dennis, Town of - Police Department (SPR 20221557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2022 SPR22/1557 Lieutenant John Brady Dennis Police Department 90 Bob Crowell Road South Dennis, MA 02660 Dear Lieutenant Brady: I have received the petition of Jeannette Hinkle, of the Cape Cod Times, appealing the response of the Dennis Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Ms. Hinkle requested: All information submitted to the state POST Commission related to police misconduct allegations by members of the public or other police officers against members of this department. This information includes, but is not limited to, the name of the officer, the date and nature of the complaint and codes showing the outcome of the investigation. On June 27, 2022, the Department provided a responsive chart in redacted form pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department’s response, Ms. Hinkle petitioned this office and this appeal, SPR22/1557, 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

Lieutenant John Brady SPR22/1557 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. The Department’s June 27th response In its June 27, 2022 response, the Department states, “[a]fter an individual assessment of the attached chart, please be advised that personnel information regarding specifically identified individuals contained in the record has been redacted from the enclosed pursuant to Exemption (c) of the Public Records Law.” Citing case law, the Department posits that “. . . after careful review, the Police Department has carefully considered the application of Exemption (c) to the redacted chart attached, to determine whether disclosure of the information that has been redacted is such that the public’s right to know outweighs any individual officer’s privacy rights, and considered the factors set forth in the PETA case . . . In balancing these interests, the Police Department has concluded that it is appropriate to redact certain personnel information from the enclosed record under Exemption (c).” 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). 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). 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.

Lieutenant John Brady SPR22/1557 Page 3 July 20, 2022 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). When analyzing a privacy claim, there is 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. Subsequently, I learned that the Department provided a further response on July 19, 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 Commission (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