Timothy J. Coco v. Methuen, City of - Police Department (SPR 20231759)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2023 SPR23/1759 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]. Previous Appeal This request was the subject of a previous appeal. See SPR23/1506 Determination of the Supervisor of Records (July 17, 2023). In my July 17th determination, I ordered the City to clarify its claims under Exemption (c) for withholding records responsive to Parts 1 and 4 of the request. Subsequently, the City responded on July 31, 2023. Unsatisfied with the City’s response, Mr. Coco further 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

Kenneth Rossetti, Esq. SPR23/1759 Page 2 August 14, 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 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 31st Response In its July 31, 2023 response, 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

Kenneth Rossetti, Esq. SPR23/1759 Page 3 August 14, 2023 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 its July 31st response, under Exemption (c), the City argues the following regarding Part 1 of the request: [D]ocumentation responsive to Part [1] of [the] request is akin to what an employment application seeks, and, per Wakefield, an application constitutes a personnel record not subject to public disclosure under Exemption (c). . . . [T]he balancing test favors non-disclosure because while there may be some public interest in the public disclosure of a police officer candidate’s prior employment history, there is a greater public interest in ensuring the integrity and confidentiality of the background investigation process.... Indeed, an employment application furnishes a road map for background investigation interviews, and protecting the application from public disclosure will protect the identity of references subject to contact by background investigators, which will increase the likelihood that investigators receive candid input from interviewees. Additionally, under Exemption (c), the City argues the following regarding Part 4 of the request: [A] background investigation includes information that is statutorily protected from public disclosure, such as the applicant’s credit history and medical information. This information informs the decision-making process for hiring applicants to serve as a police officer because of the mental and physical challenges of law enforcement work, and the attendant requirement that officers conduct themselves lawfully and honestly at all times. . . . The background investigation also requires contacting individuals known by the applicant and interviewing those persons to receive information about the applicant’s honesty, work ethic, and conduct. This part of a background investigation is a key part of the evaluation process given the significant public interaction that is required of police officers, who are expected to conduct themselves honestly and professionally at all times. . . . [T]he balancing test favors non-disclosure of the background investigation. There is no public interest in a candidate’s medical history or credit report; and, in any event, such information is statutorily protected from public disclosure.

Kenneth Rossetti, Esq. SPR23/1759 Page 4 August 14, 2023 Admittedly, there may be a public interest in the public release of background investigation interviews; however, in the City’s view, that interest is far outweighed by the even greater public interest in ensuring that interviewees feel comfortable in sharing candid input to background investigators, to help ensure that municipalities hire only fully (and candidly) vetted persons to serve in law enforcement. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (c) claims made by the City to withhold responsive records, the City must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the City’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the City is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Kenneth Rossetti, Esq. SPR23/1759 Page 5 August 14, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Timothy J. Coco