Jeannette Hinkle v. Provincetown, Town of- Police Department (SPR 20221561)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 20, 2022 SPR22/1561 Chief James F. Golden Provincetown Police Department 26 Shank Painter Road Provincetown, MA 02657 Dear Chief Golden: I have received the petition of Jeannette Hinkle, of the Cape Cod Times, appealing the response of the Provincetown Police Department (Department) to her request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On May 16, 2022, Ms. Hinkle requested the following records: Copies of documents showing all information submitted to the state POST Commission related to police misconduct allegations by members of the public or other police officers against current and former members of the Provincetown Police Department, including, but not limited to, the name of the officer, the date and nature of the complaint and codes showing the outcome of the investigation [including] copies of documents containing the definitions/descriptions of the charges/infraction/violation listed in the POST spreadsheet for the officers (ex: 11-004, Rule 9.17, etc.), and definitions/descriptions of the letter codes under the column titled “disposition,” for example NS, S, E, U and NONE. On May 31, 2022 and June 13, 2022, the Department responded. Unsatisfied with the responses, Ms. Hinkle petitioned this office and this appeal, SPR21/1561, 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). 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 James F. Golden SPR22/1561 Page 2 July 20, 2022 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. Att’y 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 Responses In its responses, the Department produced certain records and cited Exemption (c) to redact personnel information from the requested records. 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. 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).

Chief James F. Golden SPR22/1561 Page 3 July 20, 2022 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