Jeff Raymond v. Dedham, Town of - Police Department (SPR 20231567)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2023 SPR23/1567 Officer Ronald Pucci Records Access Officer Dedham Police Department 600 High Street Dedham, MA 02026 Dear Officer Pucci: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Dedham Police Department (Department) to his requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 13, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department and its compliance with the Massachusetts Peace Officer Standards and Training (POST) Commission’s duties under Chapter 253 of the Acts of 2020 to create a ‘database listing complaints against police officers,’ as detailed below.” Specifically, Mr. Raymond requested: [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 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

Officer Ronald Pucci SPR23/1567 Page 2 July 21, 2023 used for the information sent to POST between November 2021 and June of 2022 for the earlier-mentioned database…. [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. In addition, on April 20, 2023, Mr. Raymond requested “any responsive documents and/or communications concerning your municipality’s police department and communications in regard to certain lawsuits and public records.” Specifically, Mr. Raymond requested: [1] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following sentences (as they appear in said records, designated with quotation marks (example: “Public Records”), broadly construed.  “the Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2)”  “the responsive records in question are the subjects of dispute in active litigation”  “I support thereof, it is the opinion of the Department” and/or “In support thereof, it is the opinion of the Department” [2] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following Massachusetts court cases, broadly construed.  Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, (also known as Hovsepian, or Hovsepian v. Massachusetts Peace Officer Standards and Training Commission, or Hovsepian v. POST, or similar constructions) Suffolk Superior Court Docket no.2284 CV 00906  New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission (also known as MEBPA v. POST or similar constructions), Suffolk Superior Court Docket no. 2384 CV 00500 [3] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the

Officer Ronald Pucci SPR23/1567 Page 3 July 21, 2023 dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following appeal determinations published by the office of the Secretary of the Commonwealth of Massachusetts Public Records Office (“Appeal Determinations”), broadly construed.  SPR20221301 (also known as SPR22/1301) (reconsideration; Lynn, City of - Police Department, Custodian)  SPR20221373 (also known as SPR22/1373) (reconsideration; Massachusetts Peace Officer Standards and Training Commission, Custodian) Previous Appeal This request was the subject of a previous appeal. See SPR23/1158 Determination of the Supervisor of Records (June 14, 2023). In my June 14th determination, I ordered the Department to provide Mr. Raymond with a response to his request. On June 29, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1567, 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. 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 Department’s June 29th Response In its June 29, 2023 response, the Department states: Please see enclosed records in this supplemental response…. Personnel information regarding specifically identified officers contained in the enclosed charts submitted to the POST Commission by the Department has been

Officer Ronald Pucci SPR23/1567 Page 4 July 21, 2023 redacted from the enclosed pursuant to Exemption (c) of the Public Records Law. . . . With respect to personnel documentation specifically, the courts have in the past determined that disciplinary and other personnel documentation included in the investigation materials sought in this request are “absolutely exempt from disclosure,” as non-disclosure protects “the government’s ability to function effectively as an employer.” Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 799, 802 (2000); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983); Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). Indeed, specifically with respect to disciplinary documentation related or resulting from a Police Department internal affairs investigation, the courts had determined that such documentation is exempt from disclosure under Exemption (c). See, e.g., Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). In reviewing this appeal, the Police Department has carefully considered the application of Exemption (c) to the redacted charts enclosed that have been submitted to the POST Commission, to determine whether disclosure of the information that has been redacted or withheld is such that the public’s right to know outweighs any individual officer’s privacy rights, and considered the factors set forth in the PETA case, cited above, including legal matters related to the POST Commission pending in Massachusetts courts in the matters of Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, Suffolk Superior Court, C.A. 2284CV00906 and New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission, Suffolk Superior Court, C.A. 2384CV00500. In balancing these interests under PETA and the litigation, the Department has concluded that it is appropriate to redact certain personnel information from the enclosed charts under Exemption (c) while providing the remaining information requested submitted to POST. The Department has enclosed correspondence with the POST Commission, as requested. Lastly, the Department does not have any e-mails with “municipal administration.” 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

Officer Ronald Pucci SPR23/1567 Page 5 July 21, 2023 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). 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). 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. 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 redacted under Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to the requests, 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. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Officer Ronald Pucci SPR23/1567 Page 6 July 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond