Timothy J. Coco v. Methuen, City of - Police Department (SPR 20231506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2023 SPR23/1506 Kenneth J. Rossetti, Esq. City Solicitor City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Rossetti: I have received the petition of Timothy J. Coco, of Public Media of New England, Inc., appealing the response of the City of Methuen (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 22, 2023, Mr. Coco requested the following: [1.] Employment history of [a named individual], including positions held, dates of hire, durations, whether still employed and, if applicable, dates of termination. [2.] Internal Affairs investigation or other investigatory documents relating to [the individual]. [3.] Any Brady List, so called, or other submissions related to [the individual] to the Essex County District Attorney’s office, Massachusetts Peace Officer Standards and Training (POST) Commission and/or other public entities. [4.] Any background check or conclusions on or about the same relating to [the individual]. The City responded on July 7, 2023, providing records responsive to Parts 2 and 3 of the request, and citing Exemption (c) of the Public Records Law for withholding records responsive to Parts 1 and 4. See G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, Mr. Coco appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response to this office and Mr. Coco on July 12, 2023. 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 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

Kenneth J. Rossetti, Esq. SPR23/1506 Page 2 July 17, 2023 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. The City’s July 7th and July 12th Responses In its July 7, 2023 and July 12, 2023 responses, the City cites Exemption (c) of the Public Records Law for withholding records responsive to Parts 1 and 4 of the request. See G. L. c. 4, § 7(26)(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). 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).

Kenneth J. Rossetti, Esq. SPR23/1506 Page 3 July 17, 2023 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 its July 7th response, the City argues that the “materials relating to the background check and corresponding personnel file ... are exempt from disclosure pursuant to Exemption (c), Massachusetts General Laws, Chapter 4, §. 7, clause 26(c), under the Exemption’s express reference to the nonpublic nature of personnel records that do not pertain to a law enforcement misconduct investigation.” Additionally, in its July 12th response, the City argues the following: [T]he background investigation documentation that the requestor seeks from the MPD was not undertaken in connection with a law enforcement misconduct investigation. Instead, the background investigation pertained to an employment application with the MPD. Therefore, the subject documentation does not fall under the law enforcement misconduct investigation prong of Exemption (c), MGL c. 4, Section 7, clause 26(c), that might otherwise justify production; instead, the background investigation documentation is a personnel record protected from disclosure under Exemption (c)’s personnel records prong. Based on the City’s response, although the City has explained that the responsive records are not “related to a law enforcement misconduct investigation,” it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the City did not provide 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. PETA, 477 Mass. at 292. The City must clarify these matters. Additionally, the City did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is ordered to provide Mr. Coco with a response to his 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.

Kenneth J. Rossetti, Esq. SPR23/1506 Page 4 July 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Timothy J. Coco