Jeff Raymond v. Rowley, Town of - Police Department (SPR 20232331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2331 Joy Stanton Executive Assistant Rowley Police Department 477 Haverhill Street Rowley, MA 01969 Dear Ms. Stanton: I have received the petition of Jeff Raymond, of the Bramanville Tribune, 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 April 16, 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

Joy Stanton SPR23/2331 Page 2 October 16, 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 SPR23/1386 Determination of the Supervisor of Records (July 6, 2023); SPR23/1747 Determination of the Supervisor of Records (August 10, 2023); and SPR23/2057 Determination of the Supervisor of Records (September 13, 2023). In the September 13th determination, I ordered the Department to clarify its claims under Exemption (c) of the Public Records Law. The Department provided a response on September 27, 2023. Unsatisfied with the response, Mr. Raymond petitioned this office and this appeal, SPR23/2331, 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 27th response In its September 27, 2023 response, the Department provides additional information in support of its withholding of the records under Exemption (c) of the Public Records Law. The Department also cites Exemption (a) of the Public Records Law as it operates through G. L. c.

Joy Stanton SPR23/2331 Page 3 October 16, 2023 6E, § 4(13)(j). See 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). 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 27th 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: Specifically, the Session Laws, Acts 2020, An Act Relative to Justice, Equity and Accountability in Law Enforcement in the Commonwealth §29 (13j) states, ‘The commission shall promulgate regulations for the division of police certification to maintain a publicly available and searchable database containing records for law

Joy Stanton SPR23/2331 Page 4 October 16, 2023 enforcement officers.’ Clearly, 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 division of police certification’ 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. 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

Joy Stanton SPR23/2331 Page 5 October 16, 2023 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). 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: …because POST, under their legislative authority, has a greater level of access and required that these such records be created, produced and submitted, does not negate any protections associated with the individual records that might be found under: Massachusetts General Law Chapter 4 Section 7(26) c, allows the withholding of ‘personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’ Despite the Department’s response, I find it has not met its burden to withhold the responsive records. Specifically, where the amendment to Exemption (c) states “that this subclause shall not apply to records related to a law enforcement misconduct investigation,” the Department has not met its burden to show how the requested records can be withheld pursuant to Exemption (c). Order Accordingly, the Department is ordered to provide a response to Mr. Raymond, 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.

Joy Stanton SPR23/2331 Page 6 October 16, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jeff Raymond