Nathaniel Story v. Rowley, Town of - Police Department (SPR 20232289)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 10, 2023 SPR23/2289 Joy Stanton Executive Assistant Rowley Police Department 477 Haverhill Street Rowley, MA 01969 Dear Ms. Stanton: I have received the petition of Nathaniel Story appealing the response of the Rowley 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 September 7, 2023, Mr. Story requested, “all emails, including any attachments, sent by the Rowley Police Department to the email address: POSTCReports@mass.gov between the dates 9/30/2021 to present.” On September 19, 2023, Mr. Story modified the scope of his request and requested: [T]he following records submitted to the Massachusetts Peace Officer Standards and Training (POST) Commission by the Rowley Police Department: [1.] The “Summary of Disciplinary Records Submission” excel file submitted in response to the commission’s 9/30/2021 request for disciplinary records… This submission was likely sent between 9/30/2021 and 6/30/2022 [2.] The “Disciplinary Records Update” Excel file submitted in response to the commission’s 2/3/2023 request for sustained disciplinary records… This was likely sent between 2/3/2023 to present. Previous Petition This request was the subject of a previous petition to assess fees. See SPR23/2224 Determination of the Supervisor of Records (September 26, 2023). In my September 26th determination, I found that it was unnecessary to opine on the Department’s request to assess fees, because Mr. Story had modified the scope of his request. The Department provided a response on September 25, 2023. Unsatisfied with the response, Mr. Story petitioned this office and this appeal, SPR23/2289, was opened as a result. 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

Joy Stanton SPR23/2289 Page 2 October 10, 2023 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. Current appeal In his appeal, Mr. Story contends that “[t]he department is withholding two spreadsheets in full. These spreadsheets consist of disciplinary information submitted to the POST Commission.” Additionally, he asks this office “to evaluate whether the arguments made by the department justify withholding those records.” The Department’s September 25th response In its September 25, 2023 response, the Department cited Exemptions (a) and (c) of the Public Records Law to withhold two responsive records. G. L. c. 4, § 7(26)(a), (c). 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).

Joy Stanton SPR23/2289 Page 3 October 10, 2023 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. In its September 25th response, the Department cites G. L. c. 6E, § 4(13)(j), which provides in pertinent part: The commission shall promulgate regulations for the division of police certification to maintain a publicly available and searchable database containing records for law enforcement officers. In promulgating the regulations, the commission shall consider the health and safety of the officers. G. L. c. 6E, § 4(13)(j). The Department argues the following: The well-established cannon “expressio unius est exclusio alterius,” which translates as “the expression of one thing is the exclusion of other things” is an old and well respected maxim of statutory construction… and one that is directly applicable in this instance. Specifically, [G. L. c. 6E, § 4(13)(j)]… the legislators that mandated these records be created and submitted to POST (also known as “the commission”) articulated in the ruling that these records be released in a searchable database by “the commission” only. Had the legislators intended for this information to be distributed by the individual police agencies, they would have clearly articulated instruction in doing so. Here we assert that expressio unius est exclusio alterius is a clear indication of legislative intent, as it directs us to respect the purposeful inclusion of “the division of police certification” only, and the purposeful omission of any other record source, or as it relates to this request, police agencies. This agency contends that this exemption applies to the entirety of the records sought. [The Department] contend[s] the language requiring the consideration of the “health and safety of officers,”… and ultimately [the] requirement for police departments to create and produce to “the division of police certification only,” “necessarily implies that the public’s right to inspect

Joy Stanton SPR23/2289 Page 4 October 10, 2023 records under the Public Records Law”, that would unnecessarily jeopardize this emotional health and safety, is restricted from release in these and similar instances. Based on the Department’s response, it is unclear how the above cited statute permits it to withhold the requested records from disclosure. Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Department cites G. L. c. 6E, § 4(13)(j), it remains unclear how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. 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). 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. 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). 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).

Joy Stanton SPR23/2289 Page 5 October 10, 2023 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. In support of its claim for withholding responsive records under Exemption (c), the Department argues the following: The [applicability of Exemption (c)] is furthered by the July 2022 statements made by POST Commission General Counsel… in which he stated, in respect to the information collected under the legislative mandate, exist materials that are exempt from disclosure, specifically saying “disclosure is not only not required, but it’s actually prohibited.” [POST Commission General Counsel] goes on to say, “If those are disseminated improperly, there could be civil, even criminal consequences” related to that disclosure (Buskirk, C. V. (2022) Massachusetts’ Police Licensing Commission is Still Deciding What Information About Officers, Agencies Will be Made Public, Mass Live). To which, this agency is grateful that POST recognizes the ethical responsibility they have to protect the officers from potential re-victimization in instances of false accusations made against them or foreseeable harms, related to inappropriate release of materials collected. The Department further argues: [W]e reasonably argue that the release of false, criminal allegations against an officer would certainly harm the reputation of that officer, who was proven innocent by undisputable body camera evidence… Here, we contend that release of clearly false allegations would undermine the confidence in government, casting undue doubt on an officer who was found innocent after department investigation and probable cause being found by the court to charge the citizen who made the false, egregious allegations at him. As confirmed in Globe Newspaper v. Fenton, “it is the statutory policy of Massachusetts to provide individuals with “protection against unreasonable, substantial or serious invasions of privacy” (377 Mass. at 414 citing Mass. Gen. L. ch. 214, § 1B). These privacy interests weigh heavily for an individual “particularly if he was not convicted.” (89-2868-WD). “The First Circuit has held that an intrusion into one’s privacy is not unreasonable if it serves a legitimate business purpose (Squeri v. Mount Ida Coll., 954 F.3d 56, 69).” Here we contend there is no legitimate purpose in

Joy Stanton SPR23/2289 Page 6 October 10, 2023 disclosing a false and egregious allegation made against an innocent police officer and that doing so would in no way build public trust or confidence with our agency. This mindset also carries on to other incidents where officers were acquitted of any wrong doing, although the matter provided as an example is a true representation of the extreme circumstances and information contained within the requested records. Based on the Department’s response, I find it has not met its burden to withhold the responsive records from disclosure. Where the amendment to Exemption (c) states that this “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the records can be withheld under Exemption (c). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Story 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. Mr. Story 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: Nathaniel Story