Nathaniel Story v. Dedham, Town of - Police Department (SPR 20232337)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2337 Officer Ronald Pucci Records Access Officer Dedham Police Department 600 High Street Dedham, MA 02026 Dear Officer Pucci: I have received the petition of Nathaniel Story appealing the response of the Dedham 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 22, 2023, Mr. Story requested: [1] Summary of Disciplinary Records Submission –Dedham.xlsx [2] Disciplinary Records Transferred Officers Dedham Police.xlsx [3] Dedham PD Disciplinary Records Update.xlsx[.] In addition, Mr. Story requested “these documents be provided in their original file format (XLSX) and not as a PDF file.” On September 29, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Story petitioned this office and this appeal, SPR23/2337, 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 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

Officer Ronald Pucci SPR23/2337 Page 2 October 16, 2023 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. 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 29th Response In its September 29, 2023 response, the Department states, “[t]he Department has provided a response to your inquiry. We have no [sic] further to add.” The Department had provided a response dated September 22, 2023 to Mr. Story which responded to a September 8, 2023 request by Mr. Story in which he requested “all emails, including any attachments, sent by the Dedham Police Department to the email address: POSTCReports@mass.gov between the dates 9/30/2021 to present.” In its September 22nd response, the Department stated: Certain redactions were made to the enclosed records pursuant to Exemption (c) of the Public Records Law…. Exemption (c) was recently amended, both with respect to personnel records and law enforcement misconduct investigation records. As specifically stated in the Supervisor’s Guide, as updated after the recent amendment to Exemption (c), at p. 17: 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). [emphasis supplied]. At this time, it is unclear how these changes to Exemption (c) will impact how we balance the privacy interests of individual employees with the public’s rights under the Public Records Law, specifically with respect to disciplinary documentation of law enforcement personnel. In the absence of any statutory or regulatory guidance, or any case law interpreting the recently-revised provisions of Exemption (c), in this instance, the Department may withhold or redact responsive records pursuant to Exemption (c), after making the required analysis as to whether disclosure of the requested records at this time is such that the public’s right to know outweighs any individual officer’s privacy rights, and after consideration of the factors set forth in the PETA case….

Officer Ronald Pucci SPR23/2337 Page 3 October 16, 2023 The Department also notes that the 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 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 to direct appellate review. 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 the law enforcement officers under investigation.”…. Similarly, limited redactions regarding third parties may be made to produced records, pursuant to Exemption (f)….Thus, the names, addresses and identifying details of victims, voluntary complainants and/or witnesses may be withheld from disclosure permanently. Reinstein, 378 Mass. at 290. Current Appeal In his appeal, Mr. Story asserts: I have two issues with the response provided by the department: [1] the department redacted the Discipline column in spreadsheets submitted to the POST Commission. I do not believe that column should be redacted. [2] the spreadsheets were supplied as PDF documents, and not in their original file format (which I prefer)[.] 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). 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

Officer Ronald Pucci SPR23/2337 Page 4 October 16, 2023 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. 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). 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. Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the requested records can be redacted pursuant to Exemption (c). Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of

Officer Ronald Pucci SPR23/2337 Page 5 October 16, 2023 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career.” Id. at 438. To the extent the records contain the identities and identifying information of the voluntary witnesses or complainants, the Department may properly claim Exemption (f) in redacting the information from the records. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f)). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. G. L. c. 66, § 10 (b)(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 ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is additionally uncertain how the requested records are the subjects of disputes in the ongoing litigation. Consequently, I find the Department did not meet its burden of specificity in responding to the records request. Preferred Format G. L. c. 66, § 6A(d) provides, in pertinent part, that “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d);

Officer Ronald Pucci SPR23/2337 Page 6 October 16, 2023 see also 950 C.M.R. 32.04(5)(d) (“to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form[.])” In light of Mr. Story’s appeal, I find the Department must clarify whether the responsive records can be provided in the format that Mr. Story requested. Conclusion Accordingly, the Department is ordered to provide Mr. Story 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. 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