Jeff Raymond v. Plymouth, Town of - Police Department (SPR 20231922)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2023 SPR23/1922 Sergeant Benjamin Dexter Sergeant of Records Plymouth Police Department 20 Long Pond Road Plymouth, MA 02360 Dear Sergeant Dexter: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the responses of the Plymouth 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 June 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

Sergeant Benjamin Dexter SPR23/1922 Page 2 September 5, 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 Appeal This request was the subject of a previous appeal. See SPR23/1689 Determination of the Supervisor of Records (August 7, 2023). In my August 7th determination, I ordered the Department to provide Mr. Raymond with a response to his request. On August 18, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/1922, was opened as a result. While this appeal was pending, the Department provided a further response dated August 30, 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 Department’s August 18th and August 30th Responses In its August 18, 2023 response, the Department states:

Sergeant Benjamin Dexter SPR23/1922 Page 3 September 5, 2023 As an initial matter, we believe it was inappropriate for the Supervisor to opine on this and similar requests in light of pending litigation, and they should have exercised their authority under 950 C.M.R. 32.08(2)(b) by declining to opine on this matter. The amendments to Exemption (c) concerning exceptions for certain records relating to law enforcement misconduct investigations are at issue in at least two other cases pending before the Suffolk Superior Court. Quemere v. Dist Att’y for the Northwestern Dist., 1st Amend. Compl. at ¶ 4 (No. 2384CV01341); Quemere v. Dist Att’y for the Bristol Dist., Compl. at ¶¶ 3(b) and 23 (No. 2384CV01572). Until these cases reach a resolution—one likely to involve a judicial determination as to the breadth and meaning of the amendments to Exemption (c)—we believe that the Supervisor should have exercised its discretion in denying the instant appeal…. As far as we have found, there is a dearth of guidance or legislative history on this matter. It appears the clause was written identically in the proposed version of the bill from each house of the General Court and was not considered by the legislative conference committee. Nor is the phrase “police misconduct” defined by statute anywhere in the General Laws, or has the Supervisor undertaken any effort to define its scope and whether it would apply to, say, both instances of tardiness and major corruption…. [I]t is the position of this Department that the amendment codifies the distinction between internal affairs and personnel records as held by the court in Worcester Telegram. The amendment makes it clear that records that relate to a police misconduct investigation by deriving their essential character and nature from it—in contrast with those records reflecting the ultimate personnel decisions made concerning an employee after the investigation has concluded—are not subject to Exemption (c), since police misconduct records are not personnel records at all, the two being mutually-exclusive from one another. Indeed, “[d]isciplinary action is but one possible outcome [of an internal affairs investigation]; exoneration and protection of the officer and the department from unwarranted criticism is another.” Worcester Telegram 58 Mass. App. Ct at 7-8. We agree it would be inappropriate to withhold the ultimate investigative conclusion—such as whether a complaint was sustained or exonerated—but believe it is equally inappropriate to disclose whether or the degree to which an officer was subject to discipline or retraining, or what private personal issues on the part of any officer may have led up to the investigation in the first place…. An expansive interpretation of the exception would mean the Supervisor has continued to publish statutorily-abrogated case law in their own literature more

Sergeant Benjamin Dexter SPR23/1922 Page 4 September 5, 2023 than once. See also “A Guide…” at 17, n.63, February 2022 (additional, intermediate edition containing the same citation)…. In examining the potential effect of the alternative interpretation of the amendment to Exemption (c) where any material that has any connection to a police misconduct investigation is no longer exempt from disclosure—or even permit it to be subjected to the balancing test—we find absurd results…. There is no way to reasonably read the amendment as applying to “personnel…files or information”—which is listed first in Exemption (c), the most textually distant provision from the amended exception—and not have that exception also apply to “medical files or information” or the general privacy provision. This would mean that all information covered by Exemption (c) and not covered under another exemption no longer enjoys any protection from disclosure in the conduct of a police misconduct investigation…. Perhaps most critically, a broad interpretation of the amended exemption stands to prevent officers from being candid with their employers in getting help for post- traumatic stress, mental health, and substance-abuse related issues via avenues like employee assistance programs. This is especially true as these problems frequently manifest under the broad umbrella of “police misconduct.”…. As I also noted in my first response to you, I also have a concern that any member of the public aggrieved in public records request may now bootstrap a police misconduct investigation to subvert Exemption (c) withholdings when obtaining any record from a police department…. In sum, so our position is not regarded as “unclear”, there is nothing in the revision to Exemption (c) that expressly abrogates the Worcester Telegram decision a distinction which expressly considered what information related to internal affairs investigation files were subject to disclosure. Moreover, finding otherwise would demolish any legal distinction…between confidential personnel information and internal affairs or law enforcement misconduct investigatory materials. In the Department’s August 30, 2023 response, the Department asserts: In its response to Mr. Raymond, this department redacted the columns of each sheet that derived from memorandums of discipline that resulted from each, pursuant to Exemption (c). (In two instances, criminal offender record information was also redacted but is not at issue in this appeal.) This is the full extent of the redactions at issue here…. Again, it is our opinion that both the POST release and pending litigation should moot this appeal. But in the event they do not, boiled down to its essence our

Sergeant Benjamin Dexter SPR23/1922 Page 5 September 5, 2023 position is simple: Personnel records and “records relating to a police misconduct investigation”—i.e., the internal affairs file—are separate and distinct categories of records, and have been ever since the Worcester Telegram court made that “differen[ce] in kind” clear in 2003. The amendment to Exemption (c) thus functions as a statutory codification of the court’s decision, and the “exception” cannot apply to material not covered by the exemption in the first place. Mr. Raymond may be correct that the amendment’s purpose was to increase public access to police disciplinary documentation—just not total access in every circumstance. As previously noted at 4, infra, and in our August 18th response to Mr. Raymond at 3, in addition to adding the police misconduct clause, the amendment to Exemption (c) now subjects personnel (and thus, disciplinary) and medical files and information to a balancing test, ensuring such information can be withheld only when it constitutes an unwarranted invasion of personal privacy outweighing the public’s interest in disclosure. It would seem odd the Legislature would add this additional balancing in a bill concerned with police reform and misconduct when that balancing would have zero application to records “related to police misconduct investigation.” But most of all, our reading of the amendments to Exemption (c) both expand the public’s access to disciplinary materials than did the pre-amendment exemption by subjecting those records to a balancing test, while also avoiding the potentially absurd mandatory disclosure of medical and privacy-implicating information that comes with the reading Mr. Raymond advocates. 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

Sergeant Benjamin Dexter SPR23/1922 Page 6 September 5, 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). 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. Despite the Department’s response, I find it has not met its burden to redact the information from the responsive records. Specifically, where the amendment to Exemption (c) states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is uncertain how the requested records can be redacted pursuant to Exemption (c). Order 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. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond