Jeff Raymond v. Truro, Town of - Police Department (SPR 20232046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2023 SPR23/2046 Chief Jamie M. Calise Chief of Police Truro Police Department 344 Route 6 Truro, MA 02666 Dear Chief Calise: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Truro 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 16, 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

Chief Jamie M. Calise SPR23/2046 Page 2 September 12, 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 SPR23/1411 Determination of the Supervisor of Records (July 6, 2023) and SPR23/1687 Determination of the Supervisor of Records (August 4, 2023). In my August 4th determination, I found that it was unclear how the requested records could be redacted pursuant to Exemption (c) of the Public Records Law. The Department provided a response on August 17, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2046, 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 17th response In its August 17, 2023 response, the Department provided additional information in support of its redactions to the requested records provided as part of its July 17, 2023 response. See SPR23/1687 Determination of the Supervisor of Records (August 4, 2023). The Department stated the following:

Chief Jamie M. Calise SPR23/2046 Page 3 September 12, 2023 In this instance, and applying the above standard, the Department has carefully considered the application of Exemption (c) to the redacted charts to determine whether disclosure of the redacted or withheld information is such that the public’s right to know outweighs any individual officer’s privacy rights. The Department considered the factors set forth in the PETA case, cited above, as well as the POST Commission’s ongoing analysis and review of same based on the new submission criteria required in 2023 by the POST Commission to Police Departments. To date, no information contained in the charts, including disciplinary information regarding specifically identified individuals, has been publicly disclosed, including by POST. In balancing these interests and POST’s ongoing review of such information at this time, the Department concluded that it is appropriate to redact certain personnel information from the charts under Exemption (c). While the Supervisor requested further information regarding the minimal redactions made to disciplinary information contained in employee’s confidential personnel file under Exemption (c) in light of the statutory amendments to Exemption (c) enacted as part of the Police Reform Act, and the Supervisor’s interpretation of Exemption (c) in its 2022 Guide at p. 17 following the amendment to Exemption (c), it is the Department’s position that there is nothing in the revised Exemption (c) that expressly abrogates the Worcester Telegram & Gazette decision, which expressly considered what information related to internal affairs investigation files was subject to public disclosure. There is a legal distinction between confidential personnel information and internal affairs or law enforcement misconduct investigative materials. Therefore, revised Exemption (c) can be interpreted as simply codifying the holding of Worcester Telegram & Gazette, in which instance redacting the express discipline imposed in any particular situation involving a police officer is consistent with the amended Exemption (c). Current appeal In his appeal, Mr. Raymond states that “…[a]s exemption (c) ‘shall not apply to records related to a law enforcement investigation,’ I request an order to release the unredacted spreadsheets without continued delay.” 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.

Chief Jamie M. Calise SPR23/2046 Page 4 September 12, 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. 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. 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).

Chief Jamie M. Calise SPR23/2046 Page 5 September 12, 2023 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 the 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