Andrew Quemere v. Scituate, Town of - Police Department (SPR 20221568)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2022 SPR22/1568 Alison Steverman Deputy Chief Scituate Police Department 800 Chief Justice Cushing Highway Scituate, MA 02066 Dear Deputy Chief Steverman: I have received the petition of Andrew Quemere appealing the response of the Scituate 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 3, 2022, Mr. Quemere requested “…internal affairs records related to [named person]. The most recent police ID card photo of the above-named individual.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/1403 Determination of the Supervisor of Records (June 30, 2022). In my June 30th determination, I found that the Department intended on providing a further response and closed the appeal. On July 7, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1568, 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 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

Alison Steverman SPR22/1568 Page 2 July 22, 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. The Department’s July 7th response In the Department’s July 7, 2022 response, the Department provided a fee estimate and withheld the requested records pursuant to Exemption (c) and Exemption (f). Fee Estimates 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. A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first two (2) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or fewer. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In the Department’s fee estimate it states, “…an estimated fee of fifty ($50.00) dollars is required in order for the [Department] to produce the records sought by your request(s). That estimated fee is well within the parameters of G.L. c. 66 §10. The basis for that fee estimate is twofold: first, the extremely broad and undefined nature of your request for ‘all internal affairs records related to [named person] may take considerable additional time for [Department] staff to review all potential records to obtain the necessary potentially responsive materials.”

Alison Steverman SPR22/1568 Page 3 July 22, 2022 The Department further states, “[a] more detailed analysis is required in order to determine precisely what information must be redacted in compliance with G.L. c. 4. This analysis and reduction must be completed by the Town’s labor counsel, which does so at a rate far in excess of twenty-five dollars per hour. The twenty-five dollar per hour fee cap, however, has been extended to your request. The Town’s estimate of two (2) hours to finalize the assembly of materials, determine what is responsive, and conduct the legal analysis as to what must be redacted is an extremely conservative estimate.” In the Department’s fee estimate, it appears the Department is assessing a fee for 2 hours to redact the requested records. However, it is unclear why the Department requires that amount of time to complete the task. The Department did not indicate the number of records it intends to redact, nor how many minutes per page it requires to redact the responsive records. Also, although the Department claims that it is assessing a fee for redactions not required by law. Please note that under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). As such, I find the Department must provide information about whether the responsive records contain information that is required by law to be segregated or redacted, as well as the applicable statutes, if any. 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). 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

Alison Steverman SPR22/1568 Page 4 July 22, 2022 (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). 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. In the Department’s response, it stated, “…the nature of the records sought includes police reports and internal investigation materials, many of which contain potentially information that is prohibited from disclosure. This includes, but is not limited to, materials pertaining to on- going investigations or prosecutions and personal identifying information (see G.L. c. 4, § 7(26)(f); G.L. c. 4, § 7 (26)(c)).” Based on the Department’s response, it is unclear how the requested records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. As a result, I find that the Department did not satisfy its burden in withholding these records pursuant to 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

Alison Steverman SPR22/1568 Page 5 July 22, 2022 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. In its response, the Department stated, “…the nature of the records sought includes police reports and internal investigation materials, many of which contain potentially information that is prohibited from disclosure. This includes, but is not limited to, materials pertaining to on-going investigations or prosecutions and personal identifying information (see G.L. c. 4, § 7(26)(f); G.L. c. 4, § 7 (26)(c)).” While the Department claims it redacted records under Exemption (f), it is unclear how the redacted portions constitute investigatory materials. 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). Conclusion Accordingly, the Department is ordered to provide Mr. Quemere 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, Manza Arthur Supervisor of Records cc: Andrew Quemere