Jeff Raymond v. Mansfield, Town of - Police Department (SPR 20231849)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2023 SPR23/1849 Michael Ellsworth Acting Chief of Police Mansfield Police Department 50 West Street Mansfield, MA 02048 Dear Acting Chief Ellsworth: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Mansfield 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 15, 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

Michael Ellsworth SPR23/1849 Page 2 August 23, 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. Previous appeals This request was the subject of previous appeals. See SPR23/1274 Determination of the Supervisor of Records (June 26, 2023) and SPR23/1613 Determination of the Supervisor of Records (July 26, 2023). In my July 26th determination, I found that it was unclear how the requested records could be withheld in their entirety pursuant to Exemption (c) of the Public Records Law. The Department provided a response on August 9, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/1849, 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. Attorney 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. The Department’s August 9th response In its August 9, 2023 response, the Department stated the following: The only documents currently at issue are those requested in requests (1) and (5),

Michael Ellsworth SPR23/1849 Page 3 August 23, 2023 as there are either no responsive documents to the other requests, or those documents have already been provided. As previously stated, the documents being withheld are spreadsheets which compile information related to internal investigations. For further clarity, there are two such spreadsheets (one responsive to request (1), the other responsive to request (5) which generally list the officer, the charge, and the disposition of such charge. The spreadsheet responsive to request (1) includes charges that were determined to be unfounded or that, following POST updated guidance, are not reportable to the POST Commission. Again, these are not the actual internal investigation materials, but a summary of such materials. As set forth in the Town’s initial response, the documents were withheld under exemption (c), as personnel records. That is because the documents are a compilation or summary of information related to officers, but not actual investigatory materials. It is the Town’s position that the spreadsheets contains charges ... that were later determined to be unfounded or not reportable to the POST Commission, which information may affect the reputation of such officers. With that clarification regarding the records withheld, it remains the Police Department’s position that the records sought are exempt from disclosure under exemption (c), and the Police Department will not be providing those spreadsheets. Current appeal In his appeal, Mr. Raymond states the following: It should be noted that the PD has, in fact, acknowledged that the records for request (4) exist in their 2 May response. Exemption (c) is clear in its statement ‘that this subclause shall not apply to records related to a law enforcement misconduct investigation,’ (emphasis mine), and the PD’s continued assertion that the documents are ‘not investigatory materials’ is baseless. Unclear if records exist In its May, 2, 2023 response, the Department stated that “…the Police Department does not currently have in its possession any documents that list officers who do not have a disciplinary record or complaints against them, who resigned or retired in good standing, or records of incidents resulting in verbal reprimands other than those maintained as part of such officers’ personnel records, which are exempt from disclosure under the public records laws. The Police Department also does not have any other documents related to complaints against police officers for the time period requested in (4).” See SPR23/1274 Determination of the Supervisor of Records (June 26, 2023).

Michael Ellsworth SPR23/1849 Page 4 August 23, 2023 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on Mr. Raymond’s claim, I find the Department must clarify if it possesses records responsive to Item 4 of the request. 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). 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.

Michael Ellsworth SPR23/1849 Page 5 August 23, 2023 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. 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, in their entirety, under Exemption (c). 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. Mr. Raymond may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond