Jeff Raymond v. Mattapoisett, Town of - Police Department (SPR 20232174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 22, 2023 SPR23/2174 Chief Jason A. King Mattapoisett Police Department 64 County Road Mattapoisett, MA 02739 Dear Chief King: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Mattapoisett 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 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 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 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 Jason A. King SPR23/2174 Page 2 September 22, 2023 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. Prior Appeals This request was the subject of prior appeals. See SPR23/1283 Determination of the Supervisor of Records (June 27, 2023); SPR23/1662 Determination of the Supervisor of Records (August 2, 2023) and SPR23/1900 Determination of the Supervisor of Records (August 29, 2023). In my August 29th determination, I found that the Department did not meet its burden to redact the records under Exemption (c). The Department responded on September 12, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2174 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. The Department’s September 12th response In its September 12, 2023 response, the Department cited Exemption (c) of the Public Records Law to redact the records. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating

Chief Jason A. King SPR23/2174 Page 3 September 22, 2023 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. Under Exemption (c), the Department stated: [T]he scope of the statutory amendment to Exemption (c) as part of police reform legislation, and the POST Commission’s grant of authority regarding the release of police officers’ information is currently the subject of ongoing litigation in the

Chief Jason A. King SPR23/2174 Page 4 September 22, 2023 case of Eric Mack v. Office of the District Attorney of the Bristol County, SJC- 13468, . . . which the Supreme Judicial Court (SJC) is reviewing pursuant to its grant of direct appellate review. Of note, in the Mack case, the SJC is specifically considering whether “the Legislature’s grant of authority to [the POST Commission] was intended to create the exclusive avenue for members of the public to obtain access to the names of law enforcement officers under investigation.” Given the issues presented and being considered by the SJC in this appeal, and the absence of clear judicial interpretation of Exemption (c) as applicable to Mr. Raymond’s request, the Department continues to maintain that it appropriately redacted certain disciplinary information from the records provided to him. While Mr. Raymond will likely contend that the “litigation exemption” does not apply in this circumstance, the Department’s reference to the Mack case is not intended to justify withholding or redaction pursuant to Exemption (d). Instead, as noted above, its contention is that the Mack case, including but not limited to the SJC’s amicus announcement in the Mack case, reflects that the scope and application of the amendments to Exemption (c) enacted as part of police reform has yet to be decided. Accordingly, there is no clear directive under the amended Exemption (c) that the limited redactions made in this case were inappropriate. At a minimum, the Supervisor should defer to rule on this or any of Mr. Raymond’s related appeals until such time as the SJC has ruled in the Mack case. Despite the Department’s response, I find it 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,” it remains unclear how the requested records can be redacted. 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond