Jeff Raymond v. Ayer, Town of - Police Department (SPR 20232205)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 22, 2023 SPR23/2205 Brian Gill Chief of Police Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Chief Gill: I have received the petition of Jeff Raymond, of the Bramanville Tribune, appealing the response of the Ayer Police Department to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 9, 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 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”. . .[;] 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 Brian Gill SPR23/2205 Page 2 September 22, 2023 [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 and Reconsideration The requested records were the subject of prior appeals and a subsequent reconsideration. See SPR23/1211 Determination of the Supervisor of Records (June 15, 2023); SPR23/1272 Determinations of the Supervisor of Records (June 27, 2023 and August 2, 2023); SPR23/1908 Determination of the Supervisor of Records (August 29, 2023). In my August 29th determination, I found that the Department had not met its burden to redact portions of the records under Exemption (c) of the Public Records Law. On September 15, 2023, the Department responded, providing further explanation regarding its redactions under Exemption (c). Unsatisfied with the Department’s response, Mr. Raymond petitioned this office and this appeal, SPR23/2203, was opened as 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 September 15th response In its September 15, 2023 response, the Department provided a further explanation for redactions it made to records responsive to Items 1, 4, and 5. The Department stated that the redactions were made pursuant to Exemption (c) of the Public Records Law.

Chief Brian Gill SPR23/2205 Page 3 September 22, 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 Brian Gill SPR23/2205 Page 4 September 22, 2023 Under Exemption (c), the Department stated: All of the Department’s prior responses to your request are incorporated by reference herein. Without waiving any rights, the Police Department continues to maintain that Exemption (c) to the Public Record Law permits it to redact limited disciplinary information from the officer-specific documentation submitted to POST, under Exemption (c) (G.L. c. 4, §7(26)(c)), and that it has adequately justified the limited redactions made in this instance, for the reasons previously explained. The Police Department additionally notes that the scope of the statutory amendment to Exemption (c) made as part of police reform legislation, and the POST Commission’s grant of authority regarding the release of police officers’ disciplinary information is currently the subject of ongoing litigation in the case of Eric Mack v. Office of the District Attorney of the Bristol County, SJC-13468, see https://www.ma-appellatecourts.org/docket/SJC-13468, which the Supreme Judicial Court (SJC) is reviewing pursuant to its grant of direct appellate review. In particular, 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 currently being considered by the SJC in this active case, and the absence of clear judicial interpretation of Exemption (c) as applicable to your request, the Department continues to maintain that it appropriately redacted certain disciplinary information from the records provided to you. Until such time as either the courts or the Supervisor of Records determines the full scope and extent of the application of the revisions to Exemption (c), it is the Department’s position that it may appropriately continue to redact (or where appropriate withhold entirely) disciplinary documentation and information pursuant to Exemption (c). Based on the Department’s response, I find it has not met its burden to demonstrate how the redacted information fall under Exemption (c). Particularly, where the amendment to Exemption (c) states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is uncertain 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.

Chief Brian Gill SPR23/2205 Page 5 September 22, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond