Jeff Raymond v. Groveland, Town of - Police Department (SPR 20232065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 14, 2023 SPR23/2065 Jeffrey J. Gillen Chief of Police Groveland Police Department 181 Main Street Groveland, MA 01834 Dear Chief Gillen: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Groveland 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 10, 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.” Mr. Raymond requested the following records: [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 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 Jeffrey J. Gillen SPR23/2065 Page 2 September 14, 2023 calendar year 2022 and through March 31, 2023, preferably in the same format 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. On April 13, 2023, Mr. Raymond submitted a second request for the following: [1.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following sentences (as they appear in said records, designated with quotation marks (example: “Public Records”), broadly construed. “the Department intends to withhold the records in their entirety pursuant to 950 CMR 32.08(2)”; “the responsive records in question are the subjects of dispute in active litigation”; “I support thereof, it is the opinion of the Department” [2.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following Massachusetts court cases, broadly construed. Hovsepian, Scott et al. v. Massachusetts Peace Officer Standards and Training Commission, (also known as Hovsepian, or Hovsepian v. Massachusetts Peace Officer Standards and Training Commission, or Hovsepian v. POST, or similar constructions) Suffolk Superior Court Docket no.2284 CV 00906 New England Police Benevolent Association, Inc., and Daniel Gilbert v. Massachusetts Peace Officers Standards and Training Commission (also known as MEBPA v. POST or similar constructions), Suffolk Superior Court Docket no. 2384 CV 00500 [3.] Copies of any responsive communications sent or received by municipal employees and/or officers and/or employees of the police department between the dates of May 1, 2022 and April 14, 2023 that make reference to and/or cite, in whole or in part, the following appeal determinations published by the office of

Chief Jeffrey J. Gillen SPR23/2065 Page 3 September 14, 2023 the Secretary of the Commonwealth of Massachusetts Public Records Office (“Appeal Determinations”), broadly construed. SPR20221301 (also known as SPR22/1301) (reconsideration; Lynn, City of - Police Department, Custodian) SPR20221373 (also known as SPR22/1373) (reconsideration; Massachusetts Peace Officer Standards and Training Commission, Custodian)[.] Prior Appeals and Reconsideration The requested records were the subject of prior appeals and a subsequent reconsideration. See SPR23/1164 Determination of the Supervisor of Records (June 13, 2023) and SPR23/1468 Determinations of the Supervisor of Records (July 11, 2023 and August 18, 2023). In my July 11th determination, I declined to opine on Items 1, 2, and 5 due to pending litigation. On July 30, 2023, Mr. Raymond requested that I reconsider my previous determination. In my August 18th determination, I found that to the extent the records exist, the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. The Department responded on August 28, 2023. Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/2065, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 28th response In the Department’s August 28, 2023 response, the Department cited Exemption (c) of the Public Records Law to redact portions of the requested records.

Chief Jeffrey J. Gillen SPR23/2065 Page 4 September 14, 2023 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. 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.

Chief Jeffrey J. Gillen SPR23/2065 Page 5 September 14, 2023 In its response, the Department stated, “[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 ... I have redacted the officers’ names and I am citing: Exemption (c) – The Privacy Exemption. In determining whether the public interest in this specific disclosure outweighs the privacy interest associated with disclosure.” With regard to the redaction of records pursuant to Exemption (c), 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 redacted. Consequently, I find the Department did not meet its burden of specificity in claiming Exemption (c) to redact the records. 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