Jake Hentoff v. Abington, Town of - Police Department (SPR 20222747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 14, 2022 SPR22/2747 David N. Del Papa Chief of Police Abington Police Department 215 Central Street Abington, MA 02351 Dear Chief Del Papa: I have received the petition of Attorney Jake Hentoff, of the Boston Globe, appealing the response of the Abington Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 28, 2022, Laura Crimaldi, also of the Boston Globe, requested the following: [1] Employment application for [a named employee]; [2] Any and all records associated with internal affairs cases, complaints, or investigations involving [the employee], including but not limited to internal and citizen complaints, case numbers, allegations, dispositions, outcomes, and discipline. [3] Any and all awards, commendations, and citations issued to [the employee]; [4] Start/end dates and titles for all positions held by [the employee] within the Abington Police Department; [5] Any/all records informing [the employee] that he was being placed on administrative leave in September 2022; [6] Any/all payroll and attendance records for [the employee] from 1/1/2022 to present. The Department responded on October 12, 2022, citing Exemptions (c) and (f) of the Public Records Law for withholding certain records, and providing a fee estimate for others. Unsatisfied with the Department’s response, Attorney Hentoff appealed, and this case was opened as a result. 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

David N. Del Papa SPR22/2747 Page 2 December 14, 2022 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. 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. 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. Current Appeal In his appeal petition, Attorney Hentoff limits his appeal to contending that “Exemption (c) does not apply to item 5” and that “Exemption (f) does not apply to item 2.” Additionally, Attorney Hentoff states that “the Globe does not challenge the Department’s claim for exemption to Item 1, and to the extent that the commendations, awards, and citations are not already made public, the Globe does not challenge the Department’s claim for exemption to Item 3.” Consequently, I find it is unnecessary to address the Department’s fee estimate, nor its claims for withholding records responsive to Items 1 and 3 of the request. The Department’s October 12th Response In its October 12, 2022 response, the Department cites Exemptions (c) for withholding records responsive to Item 5, and Exemption (f) for withholding records responsive to Item 2. See G. L. c. 4, § 7(26)(c), (f). 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

David N. Del Papa SPR22/2747 Page 3 December 14, 2022 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. 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). 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. Under Exemption (c), the Department argues that “records responsive to requests 1, 3 and 5 [are] exempt from public disclosure.” Where Item 5 is a request for “records informing [the employee] that he was being placed on administrative leave in September 2022,” it is unclear how records responsive to this request would not be “related to a law enforcement misconduct investigation.” Accordingly, it is unclear how such records may be withheld under Exemption (c). The Department must clarify this. 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 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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity

David N. Del Papa SPR22/2747 Page 4 December 14, 2022 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. Under Exemption (f), the Department argues that “records related to ongoing Internal Affairs Investigations are exempt from public disclosure.” Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the Department did not demonstrate how disclosure of the withheld records “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). The Department must clarify these matters. Identify the Records Further, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under the cited exemptions. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide Attorney Hentoff with a response to the 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. Sincerely, Manza Arthur Supervisor of Records cc: Jake Hentoff, Esq.