Jeff Raymond v. Hampden, Town of - Police Department (SPR 20232100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2023 SPR23/2100 Chief Scott Trombly Chief of Police Hampden Police Department 100 Allen Street Hampden, MA 01036 Dear Chief Trombly: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Hampden 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.” 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 Scott Trombly SPR23/2100 Page 2 September 19, 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 SPR23/1173 Determination of the Supervisor of Records (June 15, 2023) and SPR23/1789 Determination of the Supervisor of Records (August 16, 2023). In the August 16th determination, I ordered the Department to clarify its claims under Exemptions (a) and (c) of the Public Records Law. The Department responded on August 30, 2023, citing Exemptions (c) and (n) for redacting the responsive records. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2100, 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. Current appeal In his appeal, Mr. Raymond states the following: The redactions for Request 1 are inappropriate, as the names and employment

Chief Scott Trombly SPR23/2100 Page 3 September 19, 2023 start dates are relevant to this document developed as a log of law enforcement misconduct investigations pursuant to exemption (c). Employment start dates in particular are important and relevant for proper identification of officers in the event of a similar/identical name to another officer in the state. The withholding of Request 4 is inappropriate, as the municipality miscategorizes the request as a ‘request for information’ instead of what was requested, ‘information concerning “complaints against police officers”... preferably in the same format used for the information sent to POST…’ The Department’s August 30th response In its August 30, 2023 response, the Department provided redacted spreadsheets in response to Items 1 and 5 of the request and withheld records related to Item 4. The Department cited Exemptions (c) and (n) of the Public Records Law in support of its redactions to the records. See G. L. c. 4, § 7(26)(c), (n). 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.

Chief Scott Trombly SPR23/2100 Page 4 September 19, 2023 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. Under Exemption (c), the Department argues the following: Names and employment start date are redacted for those rows where no investigation was indicated. This was done pursuant to exemption (c) of the public records law which exempts information from personnel files except those related to a law enforcement misconduct investigation. MGL c. 4, sec. 7(26)(c). For all other entries, the month and day of the employment start date has been redacted, leaving only the year. This was done pursuant to MGL c. 214, sec. 1B and the privacy exemption (c) of the public records law which exempts information from personnel files except those related to a law enforcement misconduct investigation. The exact employment start date in combination with an officer’s name could subject an individual to identity theft or fraud and are not directly related to an investigation…. Based on the Department’s response, I find the Department has not met its burden to redact records under Exemption (c) of the Public Records Law. Where the amendment to the exemption states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” the Department has not demonstrated how the responsive records are not related to a law enforcement misconduct investigation. The Department must clarify this matter. Additionally, based on the Department’s response, it is unclear how the names and employment start dates of public officials are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477

Chief Scott Trombly SPR23/2100 Page 5 September 19, 2023 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” PETA, 477 Mass. at 289-90. The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. Under Exemption (n), the Department argues the following: The Agency ID and Acadis User ID have been redacted pursuant to exemption (n) of the public records law which protects information that if disclosed could likely jeopardize public safety or cyber security. MGL c. 4, § 7 (26)(n). The IDs are used to call officers during police radio communications and the user ID is part of cyber security protocols. Despite the Department’s assertion that the IDs are used to call officers during police radio communications, I find the responsive records do not resemble the records enumerated in

Chief Scott Trombly SPR23/2100 Page 6 September 19, 2023 Exemption (n), particularly because the Department has not demonstrated the likelihood that a terrorist would use these IDs “to maximize damage.” PETA, at 290. Further, although the Department argues that the IDs are part of cyber security protocols, it has not demonstrated how the release of the IDs is likely to jeopardize public safety. As such, I find the Department has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of such information is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. Records in existence Regarding Item 4 of the request, the Department stated that “[n]o response [is] required as this is a request for information, not documents.” The Department is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Department’s response, I find it is unclear whether the Department possesses records responsive to Item 4 of the request. The Department must clarify this matter. Conclusion 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