Jeff Raymond v. Amesbury, City of - Police Department (SPR 20231130)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2023 SPR23/1130 Janet Nicolaisen Records Access Officer Amesbury Police Department 19 School Street Amesbury, MA 01913 Dear Ms. Nicolaisen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Amesbury Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 10, 2023, Mr. Raymond requested the following records: [1.] A copy of the document your police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its ‘database listing complaints against police officers’ planned for May of 2022. . . . [2.] Copies of any relevant responsive communications between a) your police department and/or your town officials and b) the POST Commission in regard to the database planned for May of 2022 as detailed above and/or compliance with the reporting for said database between the dates of July 1, 2021 and December 31, 2022, broadly construed. [3.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with this mandate between the dates of July 1, 2021 and December 31, 2022, broadly construed. [4.] Information concerning ‘complaints against police officers’ issued in the calendar year 2022 and through March 31, 2023, preferably in the same format used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database. . . . 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

Janet Nicolaisen SPR23/1130 Page 2 June 13, 2023 [5.] A copy of the document your police department sent to the POST Commission as sent to the POST Commission, likely sent between December 1, 2022 and April 9, 2023, to comply with the “2023 POST Commission Disciplinary Records Resubmission.” ... [6.] Copies of any relevant responsive communications within or between a) your police department and b) your municipal administration in regard to this database and/or compliance with the “2023 POST Commission Disciplinary Records Resubmission” described above. Prior Appeal This request was the subject of a prior appeal. See SPR23/0825 Determination of the Supervisor of Records (May 10, 2023). In my May 10th determination, it was my understanding that the Department intended to provide a further response. The Department responded on May 26, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1130 was opened as a result. The Department’s May 26th Response In its May 26, 2023 response, the Department cited Exemption (c) of the Public Records Law and pending litigation to withhold records. 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). 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. Sch. 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 Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013).

Janet Nicolaisen SPR23/1130 Page 3 June 13, 2023 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. When citing Exemption (c) in response to request 4, the Department stated: POST changed the reporting requirements and therefore some complaints are strictly Internal Affairs Investigations, falling under exemption (c). The nature and character of this document makes it part of the core category of personnel information that is useful in making employment decisions regarding the employee. Based upon the update to Exemption (c) where the amendment states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be withheld. The Department must clarify this matter. Active 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:

Janet Nicolaisen SPR23/1130 Page 4 June 13, 2023 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In response to requests 3 and 6, the Department’s stated, “[t]he Amesbury Police Department is not directly named in the Gilbert vs. Massachusetts Police Officers Standards and Training Commission. The ruling on that case, however, directly relates to what the Amesbury police Department will or must release. Therefore we are denying this request based on the above information.” Where the records responsive to requests 3 and 6, are the subjects of a dispute in active 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 action could impact the applicability of 950 C.M.R. 32.08(2)(b). See Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission (Suffolk Superior Court Docket No.2284CV00906). Additional records In his appeal, Mr. Raymond stated, “[m]y initial request included the database records as well as communications surrounding compliance with said database. The blanket denial did not directly cite any specific applicability to any known exemptions, nor does this supplemental denial mention it at all.” In light of the appeal made by Mr. Raymond, it is unclear if the Department possesses additional records that may be responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that responsive records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. Raymond 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.

Janet Nicolaisen SPR23/1130 Page 5 June 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond