Jeff Raymond v. Rowley, Town of - Police Department (SPR 20232057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2023 SPR23/2057 Joy Stanton Executive Assistant Rowley Police Department 477 Haverhill Street Rowley, MA 01969 Dear Ms. Stanton: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Rowley 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

Joy Stanton SPR23/2057 Page 2 September 13, 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 SPR23/1386 Determination of the Supervisor of Records (July 6, 2023) and SPR23/1747 Determination of the Supervisor of Records (August 10, 2023). In my August 10th determination, I found that it was unclear how the Department could claim Exemption (c) to withhold the requested records, and I ordered the Department to identify all the records responsive to the request that were in its possession. The Department provided a response on August 18, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2057, 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. 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. Current appeal In his appeal, Mr. Raymond states the following: Exemption (c) does not provide the sort of justifications for withholding all

Joy Stanton SPR23/2057 Page 3 September 13, 2023 records as the PD has here, nor has the PD provided records that fulfill their obligation under state law while also redacting the specific information about the false accusation the municipality believes creates “irreparable foreseeable harm. The Department’s August 18th response In its August 18, 2023 response, the Department provides additional information in support of its withholding of the records under Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). 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). 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. 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).

Joy Stanton SPR23/2057 Page 4 September 13, 2023 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. In support of its claim for withholding responsive records under Exemption (c), the Department argues the following: …in the department’s June 23, 2023 response, [it] cited the clearly evidenced example of irreparable foreseeable harm that can arise from releasing the records requested by Mr. Raymond, prior to POST oversight, vetting, and review. Once again this agency clearly acknowledges a portion of the requested records will eventually be made public, under the legislative mandate and through the appropriate state agency, POST, not each individual police department, thus satisfying the ultimate goal of [Mr. Raymond’s] request and that of the Public Records Laws. Next, in the evidenced example provided, which highlights only one such case, of hundreds, if not more throughout the state, we provided facts supporting an incident where a police officer was the victim of a crime, that being the false report a heinous allegation. Releasing the requested records, which include these types of false reports, would only re-victimize and further the harm done to the innocent police officers throughout the state. Despite the Department’s response, I find it has not met its burden to withhold 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,” the Department has not met its burden of demonstrating that the requested records do not relate to police misconduct. It is also unclear if the Department identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. See G. L. c. 66, § 10(b)(iv). Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Raymond with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its

Joy Stanton SPR23/2057 Page 5 September 13, 2023 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 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