Jeff Raymond v. Rockland, Town of - Police Department (SPR 20232201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2023 SPR23/2201 Nicholas P. Zeoli Chief of Police Rockland Police Department 490 Market Street Rockland, MA 02370 Dear Chief Zeoli: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Rockland Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 18, 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.... 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 Nicholas P. Zeoli SPR23/2201 Page 2 September 29, 2023 [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 SPR23/1606 Determination of the Supervisor of Records (July 27, 2023) and SPR23/1881 Determination of the Supervisor of Records (August 28, 2023). In my August 28th determination, I found the Department had not met its burden of specificity to withhold responsive records. Subsequently, the Department responded on September 12, 2023, citing Exemptions (a) and (c) of the Public Records Law for withholding responsive records. Unsatisfied with the Department’s response, Mr. Raymond further appealed, and this case 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 provides redacted records responsive to Parts 1 and 5 of the request, and indicates that it does not possess records responsive to Parts 2, 3, 4, and 6 of the request. See G. L. c. 4, § 7(26)(a), (c).

Chief Nicholas P. Zeoli SPR23/2201 Page 3 September 29, 2023 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 214, § 1B, The Privacy Statute In its September 12th responses, the Department cites G. L. c. 214, § 1B, known as the Privacy Statute, which provides: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records or information responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Therefore, this statute does not allow for the redaction of the requested records.

Chief Nicholas P. Zeoli SPR23/2201 Page 4 September 29, 2023 Exemption (c) Exemption (c) applies to: 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. 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). When analyzing a privacy claim, there is 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 that “portions of the responsive records ... contain personnel and medical files or information relating to a specific individual, and the disclosure of these records would constitute an unwarranted invasion of personal privacy.” Additionally, the Department argues that “the attachment contains records and personnel information that is not related to misconduct, as the initial request for information from the POST Commission included information regarding complaints that were found to be ‘Not Sustained,’ ‘Unfounded,’ or ‘Exonerated.’” Based on the Department’s response, I find that the Department has not met its burden to demonstrate how the responsive records are not “related to a law enforcement misconduct investigation.” G. L. c. 4, § 7(26)(c). Consequently, the Department has not met its burden to redact columns including the names of police officers and “Discipline” pursuant to Exemption (c).

Chief Nicholas P. Zeoli SPR23/2201 Page 5 September 29, 2023 Possession, Custody, and Control 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 regard to Part 5 of the request, the Department provides a link to a website and states that “the information requested in request 5 is available online ... as the POST Commission made this information publicly available.” Based on the Department’s response, it is unclear whether the Department possesses records responsive to Part 5 of Mr. Raymond’s request. The Department must clarify this. 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 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond