Nathaniel Story v. Salem State University (SPR 20231969)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2023 SPR23/1969 Rita P. Colucci, Esq. Vice President and General Counsel Salem State University 352 Lafayette Street Salem, MA 01970-5353 Dear Attorney Colucci: I have received the petition of Nathaniel Story appealing the August 19, 2023 response of the Salem State University (University) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 20, 2023, Mr. Story requested “all emails, including any attachments, sent by any salemstate.edu address to the email address POSTCReports@mass.gov between the dates 9/30/2021 to present.” In an August 19, 2023 email response to Mr. Story regarding his July 20th request, the University provided Mr. Story with certain records, redacting the names of officers who were investigated for alleged misconduct, and the disciplinary action that the University took against the officers, pursuant to Exemption (c) of the Public Records Law. The University provided six records in redacted format pursuant to Exemption (c), and withheld in its entirety, an attachment to an email, entitled, “SSUPD Complaint Against Officer and…Letter.pdf.” In addition, on August 22, 2023, the University provided another response regarding three (3) complaints filed by students, asserting: [a]s for the redactions to complainant’s information in records 1, 2 and 4, yes, the information was withheld pursuant to exemption c. The redacted information includes the [University] student identification numbers and birth date of the complainants – combined with their names, the information is considered personal as it can be used to infringe upon their privacy interests including gaining access to passwords, financial information and the like. The public’s interest in knowing the student ID numbers and birth dates of complainants does not outweigh the risk to the individual’s privacy. 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

Rita P. Colucci, Esq. SPR23/1969 Page 2 September 6, 2023 As a result of the University redacting the names of the officers and the discipline given to the officers under Exemption (c), Mr. Story petitioned the Supervisor of Records, and this appeal was opened. In his petition, Mr. Story states, “I believe Exemption (c) does not apply, and I would like those redactions removed.” 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 town 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. 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 University’s August 19th Response and Production of Records In its August 19, 2023 response, the University provided the following records in redacted format under Exemption (c) of the Public Records Law: Email dated May 4, 2022 from Gene Labonte to POSTReports@mass.gov; Email dated February 15, 2022 from Gene Labonte to POSTReports@mass.gov.; Attachment entitled POSTC Agency Official’s Attestation Regarding Candidate for Certification as a LEO John Armenti SSUPD.pdf; Attachment entitled, Salem State Active Officers – Complaint Audit Sheet 9.29-2021 Final.xls; an Excel spreadsheet which lists the names of police officers who have been disciplined and the reasons for such discipline; an Excel spreadsheet which lists the names of police officers who have been employed at Salem State and discipline, if any. Further, in its August 19th response, the University stated the following: [a]dditionally, the attachment SSUPD Complaint Against Officer and … Letter.pdf contains a letter regarding the disposition of the investigation and is included in the personnel file of the officer. The record is not disclosed pursuant to MGL c. 4 section 7(26)(c) for the following reasons: (1) [t]he information is a

Rita P. Colucci, Esq. SPR23/1969 Page 3 September 6, 2023 disciplinary record and found in the personnel file of the specifically named individual; (2) Worcester Telegram and Gazette v. Chief of Police of Worcester & another, 58 Mass. App. Ct. 1 (2003), holds that disciplinary records of police officers resulting from internal affairs investigations, unlike investigation records, are not subject to disclosure. Therefore while investigatory records might be disclosable, the resulting discipline found in the redacted language, is not disclosure; (3) [t]o release the information would be an unwarranted invasion of privacy. . . . Releasing disciplinary information would result in personal embarrassment to this individual, a person of normal sensibilities, as their employment information is highly private, reflects their skills, abilities, and judgment in the workplace. The discipline is also to be judged more harshly than the discipline of an individual in another line of work. The disciplinary information that reflects on the individual’s challenges and struggles in the work place, information that is not shared beyond those with a need-to-know within the employer’s organization. As employment status is so personal to individuals and for many, defines their worth and contributions to society, this information is of a highly personal nature. Additionally, this information is always regarded as confidential by the employer because of the need to respect an individual’s privacy and thus is not available from other sources. While the public may have a right to know certain information about police officers and those working in law enforcement, it does not follow that all privacy interests are forfeited. As the Worcester Gazette case and the amendment to the section 7(26)(c) recognize, and investigation into allegations of police misconduct may be shared with the public. However, any resulting discipline remains private to the individual.” I note that the University has used this same argument of Exemption (c) to support its redactions of the names of the police officers and the discipline that the officers received. 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

Rita P. Colucci, Esq. SPR23/1969 Page 4 September 6, 2023 (1980). Therefore, determinations must be made on a case by case basis. 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). 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. 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. The University is advised, 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 University can redact the names and the disciplinary action against the law enforcement officers employed by the University. As such, I find that the University has not met its burden in redacting the information under Exemption (c). Further, the University withheld in its entirety under Exemption (c), a letter concerning a complaint against a particular law enforcement officer regarding the disposition of the investigation, and placed in the officer’s personnel file. Based on the above, I find the University has not met its burden to withhold the record from disclosure under Exemption (c).

Rita P. Colucci, Esq. SPR23/1969 Page 5 September 6, 2023 Conclusion Accordingly, the University is ordered to provide Mr. Story 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. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Story